House of Commons
(9 years, 9 months ago)
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Prayers
(9 years, 9 months ago)
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09:34 - The House divided: - Ayes: 2 / Noes: 33 - Question accordingly negatived.
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Mr David Nuttall (Bury North) (Con)
I beg to move, That the House sit in private.
Question put forthwith (Standing Order No. 163).
Health Service Commissioner for England (Complaint Handling) Bill
(9 years, 9 months ago)
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Mr James Arbuthnot (North East Hampshire) (Con)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss new clause 2—Information for the persons making the complaint—
‘The Health Service Commissioner shall make available to the complainant, at the outset of an investigation, an estimate of the period within which the investigation is likely to be completed.’
Mr Arbuthnot
May I begin by congratulating my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on getting the Bill through Second Reading without any discussion whatsoever, then through Committee without any amendment and now on Report? On Tuesday, in the Committee deliberating on the National Health Service (Amended Duties and Powers) Bill, during which hon. Members had the misfortune of having to listen to me speak for a little longer than normal, I said that in 28 years in this House I have never had a private Member’s Bill, so my right hon. Friend’s achievement is considerable.
Mr David Nuttall (Bury North) (Con)
As one of those who had the good fortune of being able to listen to my right hon. Friend’s speech on Tuesday, I can assure him that it was no difficulty at all—it was very illuminating.
Mr Arbuthnot
Given that I spoke for four and a quarter hours, my hon. Friend is very kind to make that generous observation, but I am not sure that I share his view.
Over my political life I have often been asked what I would choose for a private Member’s Bill. In my early political life I would usually say something frightfully worthy, such as bringing in a Bill to improve the national health service. In my later political life, as my cynicism has grown, I have said that I would bring in a private Member’s Bill to abolish private Members’ Bills.
Mr David Davis (Haltemprice and Howden) (Con)
The guidance that I took in determining which Bill I would present to the House, given that I was No. 19 in the batting order, was the guidance of my old friend Eric Forth, whose ghost still haunts these proceedings. Eric believed that private Members’ Bills should be essentially uncontroversial. He thought that the private Members process existed not to put controversial Bills through, but to allow things that were fairly obvious to be done. That was my guidance in choosing this Bill in this form, and I will come back to that later.
Mr Arbuthnot
Eric Forth was a friend both of my right hon. Friend and of mine. My understanding of his view was that all legislation was a bad thing, which is why, even when he was in government, he was in opposition, and would try to stop virtually everything. That caused some difficulties to me when I was the Opposition Chief Whip.
Every year I have put my name into the private Members’ Bill ballot and have dreaded the thought that it might, one of these days, come out. Luckily, it never has and now it never will. As my right hon. Friend says, there is a dilemma for someone who chooses a private Member’s Bill as to whether to choose something that is small and uncontroversial that Eric Forth might have allowed through, or large and making a great statement but bound to fail. It is rare indeed that a private Member’s Bill makes only a small change but in that small change he or she achieves something of great importance.
I suspect that my right hon. Friend’s Bill may be just such a Bill. I congratulate him on spotting so small a change that might be needed and then on bringing forward a measure that does something about it. I have read the proceedings of the Committee, which lasted for roughly half an hour. My right hon. Friend said that he was comparatively inexperienced in these matters, since the last Bill he piloted through the House of Commons was the Intelligence Services Bill in 1994. It is interesting and unusual to think of my right hon. Friend as a comparative novice at anything, but for a novice he seems to have done pretty well. Not many of us have our own legislative programme, so I congratulate him again.
In order to explain the purpose of my amendments, I need to start by setting out the purpose of my right hon. Friend’s the Bill in a way that, I hope, will not offend him and that will do justice to its importance. The effect of his Bill, as I understand it—he will put me right if I am wrong—is to ensure that if a complaint has not been resolved within 12 months of its receipt, the health service ombudsman will send the complainant a statement explaining why there has been a delay.
Mr Nuttall
My right hon. Friend has just referred to the ombudsman. Does he agree that one of the problems with legislation is that it is very often unintelligible to people outside this House? The Bill is called the Health Service Commissioner for England (Complaint Handling) Bill. Does he not think it would be beneficial if it was referred to as the Health Service Ombudsman for England (Complaint Handling) Bill?
Mr Arbuthnot
I like my hon. Friend’s suggestion. In Committee on Tuesday, he and I discussed the value of having legislation that is comprehensible to the people whom it affects, and this Bill will affect everyone in the country. The laws we make should not be written in gobbledegook that is not comprehensible to the people who own and enforce the law and who have it enforced upon them. It would be an improvement if the legislation referred to an ombudsman, because that is what everybody calls them, so I hugely support my hon. Friend’s suggestion.
Mr David Davis
I return to the Eric Forth principle. As I have said, Eric was a friend of mine. Indeed, I successfully nominated him for a knighthood, but he died before he could receive it. I took his views seriously and he believed in simplicity in these matters. The difficulty conjured up by the suggestion made by my hon. Friend the Member for Bury North (Mr Nuttall) is that a proposed law must be enforceable according to the terms of the law it seeks to amend. This Bill seeks to amend an Act about national health service commissioners, so if it referred to an ombudsman it would run into a problem of legal conflict. My hon. Friend makes a very good point, with which I agree—Eric Forth would have, too—but we had to compromise.
Mr Arbuthnot
My riposte to my right hon. Friend is that perhaps he could have promoted a slightly bigger Bill to amend the Acts that introduced the parliamentary ombudsman in 1967 and the health service ombudsman in 1973 and combined them in a way that made them accessible to the public, which, as my hon. Friend the Member for Bury North (Mr Nuttall) has said, they currently are not. They see the words “commissioner” and “ombudsman” and wonder where the two meet.
Mr Arbuthnot
My right hon. Friend has got me there, so I will subside.
The Bill would give a complainant to the ombudsman a statement of explanation if there was a delay. That seems a very small suggestion, but the humanisation that such a statement would bring to a process that would inevitably be a little intimidating for complainants, however well the health service ombudsman does her work, may well make the difference to whether a complainant will trust the process or not. If a complaints process is not trusted by complainants, we might as well not have the complaints process in the first place.
The Bill would also require the ombudsman to include in her annual report details of how long investigations of NHS complaints have taken to be concluded, how many of those investigations have not been resolved within a 12-month period following receipt of the complaint by the ombudsman, and the action being taken with a view to concluding all investigations within a 12-month period. That process of openness would lead to an improvement of trust between those who use the NHS and have the misfortune of needing to complain about it and the ombudsman given the task of looking into such complaints. As a by-product, the Bill might also act as a further spur to the national health service commissioner to ensure that even more cases are concluded within a 12-month period. As I understand it, about 99% of the cases she takes on are concluded within a 12-month period.
My new clauses are probing amendments. I do not intend to go to the wall or to die in a ditch for them, if that is an appropriate juxtaposition of metaphors. They state that the
“Health Service Commissioner shall make available to anyone considering making a complaint, an estimate of the period within which investigations are to be completed”
and that once a complaint has been made the
“Health Service Commissioner shall make available to the complainant, at the outset of an investigation, an estimate of the period within which the investigation is likely to be completed.”
I have tabled the new clauses simply in the interests of transparency. It might be thought reasonable for people to be aware of how long they would have to wait for a response if they complained to the ombudsman.
Mr Davis
My right hon. Friend makes a very good point. In a perfect world, one would want to be able to tell every complainant to the health service ombudsman that they would get an answer within three months. However, in the case which initially led to such concerns the errors were manyfold in an area—it was sepsis, which I shall talk about on Third Reading—in which it took some time to develop an understanding of treatment and of the best approach. It is very difficult to know in advance how long it will take to resolve a problem, which may sometimes be medical as well as managerial, with a proper answer.
Mr Arbuthnot
I have to say that I find that argument extremely persuasive. However, it is reasonable for the ombudsman to give some idea of how long an investigation is expected to take. After all, it is only an estimate, not a hard and fast guarantee. I accept that the estimate may turn out to be woefully wrong—I think my right hon. Friend was referring to the Sam Morrish case, a huge tragedy that was highlighted in Committee by all parties—but I am just suggesting that it would be helpful to give an estimate. People may be put off complaining if they do not know what will happen, and they will be less frustrated if they are kept informed during an investigation.
Mr Nuttall
My right hon. Friend says that complainants will be less concerned if they are kept informed during the progress of an investigation, but on my reading of his new clause 2, there is no requirement on the commissioner to keep them informed, merely to give them an estimate of the period of the investigation at its outset.
Mr Arbuthnot
My hon. Friend has spotted a deep lacuna in my new clause, of which I am conscious. He is quite right, as I would expect of someone with his forensic skills. There is not, however, any need for legislation, in the way my hon. Friend suggests, to require the ombudsman to keep the complainant informed because, as far as I can tell, the ombudsman already does her best to keep complainants informed. In relation to the changes that the ombudsman is making in modernising the ombudsman process, which we will no doubt discuss on Third Reading, she is going out of her way to start a public consultation to ensure that the changes are as friendly to the public as possible.
Mr Davis
Eric Forth’s principle No. 4 is that laws should be minimalist: there should be the absolute minimum amount of law that there can possibly be to get the outcome one wants. In considering the Bill, I was concerned that we must not tell the ombudsman how to manage her business, as it were, particularly since the current ombudsman is doing an extremely good job of accelerating the process, dealing with more cases and dealing with them more quickly. I wondered for a while whether even this Bill was too much in terms of putting a force up behind it, but then I thought that there is not always the same ombudsman with the same energy level. The Bill will give a guarantee to the public and is therefore worth while. I was careful not to give instructions to do it in this way, that way or the other way. It is much better to leave good management to the service, but to put a public guarantee into law.
Mr Arbuthnot
It is worrying that my right hon. Friend is persuading me that I am wrong. It is very worrying, while one is on one’s feet, to be persuaded out of one’s own arguments. If he will allow me to cling on for just a few moments, I will get to the dregs of my argument.
The ombudsman might be the only champion of someone who is already vulnerable because they have been incapacitated to one extent or another by their health needs. Therefore, it would be a good idea to encourage the ombudsman to give as much information as possible to the complainant at the outset of the complaint, although my right hon. Friend is right, given his fourth or fifth Eric Forth principle on keeping laws as minimalist as possible, that we possibly should not put it into law.
As I said, 99% of complaints are completed within 12 months—that is, those that are taken on by the ombudsman. We will have to come back on Third Reading to whether the ombudsman takes on enough of the complaints that are made to them, because that issue arose in the evidence sessions of the inquiry of the Public Administration Committee into the ombudsman. If my new clauses were accepted and the ombudsman had to make an estimate of how long it would take, it is quite possible that they would simply have to tick a box to say that it would take less than 12 months. Therefore, the new clauses might, as my right hon. Friend might say, add very little but a formality. As I have said, I do not think that this reflects the way in which the health service commissioner operates. If there is an issue, she does as much as she can to keep people informed about what is happening.
The new clauses are probing amendments and, as I say, I will not die in the ditch for them. However, I look forward to hearing the views of my right hon. Friend the Member for Haltemprice and Howden, my hon. Friend the Minister and the Opposition spokesman about this minor attempt to be helpful.
Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)
I will give a brief response on the two proposals of the right hon. Member for North East Hampshire (Mr Arbuthnot) in new clauses 1 and 2. On Third Reading we will perhaps talk at greater length about the merits of the Bill and why it is important that we are here today. I acknowledge that these are intended to be probing amendments to provoke discussion and debate.
New clause 2 is important. We know from many of our constituents who are going through this process that it often comes at a difficult time. Any more information that they can receive about how long they should expect to wait would be helpful. We are all familiar with the card that the ombudsman already provides to us on receipt of our applications to them, so any further information that we could provide to our constituents about how long they should expect to wait would be helpful.
I see no problem with new clause 2, which seeks to provide a complainant, at the outset of an investigation, with
“an estimate of the period within which the investigation is likely to be completed.”
The key point is that it is an estimate. My only concern, although I acknowledge that the overwhelming majority of cases are completed within a year, is that we must manage the expectations of anyone who submits a complaint to the ombudsman. I reiterate that cases often come at a difficult time for people, and the concern is about complainants having to wait for months beyond the time set out by the ombudsman.
We will talk more on Third Reading about why a complaint might be brought, but we often support constituents at a time when they have had a loss or gone through a difficult medical procedure, and we know that it is important to manage expectations. Anything that we can do to provide assurance will be positive, but I do not want any period that the health service commissioner sets out to give people a false sense of security that they will receive a response within a certain time, when it could be many months after that.
I look forward to the Minister’s response, but I do not think there is much to take issue with in new clause 2 if the right hon. Member for North East Hampshire decides to press it to a Division. As I said, my only concern is about the broader provision of information to the public. I would not want to place on the health service commissioner too onerous a duty to provide a wide audience with expectations of when complaints might be responded to. We know from the commissioner that there is already an expectation that complaints will be responded to within 12 months, which is helpful, but new clause 2 would help to give people who are bringing a complaint some expectation of when it might be responded to.
Mr Nuttall
It is always a pleasure to follow the shadow Minister, whose remarks were pithy and straight to the point. I will try to be equally pithy in dealing with these short new clauses. I am grateful to my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) for tabling them, because they give us an opportunity to consider whether it is appropriate to include in the Bill a requirement for information to be provided to the public in general, and a complainant in particular.
New clause 1 states:
“The Health Service Commissioner shall make available to anyone considering making a complaint, an estimate of the period within which investigations are to be completed.”
Frankly, I wonder whether there is any need for the new clause. I do not want to pour cold water on my right hon. Friend’s attempts to improve the Bill, which I know are well intended, but I wonder whether he is aware of any occasion when someone has approached the commissioner and said, “I am thinking of making a complaint. Can you tell me how long you think it might be?”, and the commissioner has said, “I’m sorry, I can’t tell you that. We’re not going to tell you.” If there are a lot of people in that position, I agree that we need to address it in legislation, but I have certainly never had anybody approach me and say, “I was thinking of making a complaint, but they won’t tell me how long it will take.” I am not sure that there is a particular problem that we need to address, but I am sure that my right hon. Friend will enlighten us about that.
Mr Arbuthnot
I have to say that I have received no information from anyone who has had such an experience. My suspicion is that if one went to the ombudsman and asked, “How long is this likely to take?”, the ombudsman would say, “If you look at our last report, you will see that 99% of our cases were concluded within a year, so you can expect something roughly like that.” New clause 1 is merely an attempt at transparency.
Mr Nuttall
I am grateful to my right hon. Friend for that intervention, which leads me directly on to my second point. I suspect that if the commissioner is approached by a member of the public, or indeed by a prospective complainant who has it more immediately in mind to make a complaint, all that will happen is that the commissioner will say, “Without a lot more information about the nature of your complaint, I can do no more than look at our history of dealing with complaints. If you look in the annual report or consult our website, you will see that 99% of cases are concluded within a year; to put it another way, there is one chance in 100 that your complaint may still be outstanding after one year.” Of course, that does not give the whole picture, because the ombudsman’s annual report states that it was able to conclude 67% of cases within one month. Therefore, two out of three cases are dealt with relatively speedily, which is probably as good as one would expect to find anywhere. Few complainants would expect their complaint to be dealt with faster than that.
Mr Arbuthnot
My hon. Friend is right to say that there is a one-in-100 chance of a complaint taking more than a year to be dealt with, but I should perhaps have said that there are only about three chances in 100 of a complaint being dealt with at all, because so many of them are outside the scope of what the ombudsman can look into in the first place.
Mr Nuttall
That is right, and it prompts a question about whether some advantage is to be gained by the commissioner providing more help at the initial stages to try to signpost people. Indeed, the annual report states that the ombudsman receives about 40,000 contacts a year, including queries about where and how to complain about public and non-public services. Of those 40,000 contacts, 27,566 were inquiries for the commissioner, which demonstrates that many members of the public will quite innocently contact the commissioner about matters that do not fall within her responsibilities.
Mr Christopher Chope (Christchurch) (Con)
Does that show that new clause 1 is ill conceived? It states that before people make a complaint they must get an estimate of how long it is likely to take to resolve it. However, the bigger issue for people before they make a complaint is what the chances are of it being accepted for investigation.
Mr Nuttall
My hon. Friend makes a good point. People may assume that they have simply to make a complaint for it to be followed up, but as statistics from the commissioner’s report show, that is not the case. Many complainants would presumably like someone to deal with their complaint, but are disappointed at the outset before they have even got going, and are told, “I’m sorry; you’ve come to the wrong person.” It may be that there is nobody to deal with that complaint, and the complainant is sent off to look elsewhere.
I have one further point on the detail of new clause 1. If the commissioner was expected to make a more accurate assessment of the time within which the complaint is likely to be completed, she would have to find out much more detail about the nature of the complaint. That would obviously entail more work for her and her staff. It is the law of unintended consequences: we may find that imposing more obligations and burdens on the staff of the ombudsman’s office, in an attempt to be helpful, extends the length of time it takes for a complaint to be resolved, because staff will be engaged in assessing how long it would take to deal with a new complaint, rather than getting on with dealing with complaints. That is a problem.
I accept that all these matters could be dealt with by providing extra resources. We have not really addressed that point so far this morning; it is the elephant in the room. I do not think this is outside the scope of the new clause. If we impose, or even just set out, an expectation on the commissioner to follow this provision, there will be implications for the deployment of resources. The commissioner could rightly say, “Well, it is all very well expecting me to give an estimate to every member of the public who approaches my office of how long their case will take, but where are the extra resources?” That would be a legitimate question to ask. Otherwise, the commissioner is likely to say that complaints might take about a year, which would probably not be very helpful to most prospective complainants.
New clause 2 relates to complainants who, perhaps having looked at the website, have decided that regardless of the length of time it will take, they will make a complaint. The new clause states:
“The Health Service Commissioner shall make available to the complainant, at the outset of an investigation, an estimate of the period within which the investigation is likely to be completed.”
That implies that initial details have already been taken. I would expect this to be rather more specific advice than that provided to a member of the public. This is someone who has lodged a specific complaint, which the commissioner has accepted. It is a small point, and I have not bothered tabling an amendment to new clause 2, but I would prefer it to read, “The health service commissioner shall give the complainant, within 14 days of the outset of an investigation, an estimate of the period in which the investigation is likely to be completed.” I would have tried to tighten it up a little bit, but I nevertheless accept that that is the wording put forward by my right hon. Friend.
I raised a point about providing updates. My right hon. Friend’s response was that there was no need to legislate on that, because he felt that the commissioner was providing updates anyway. If she is, I could use the same argument about new clauses 1 and 2. If we have no evidence—no one has been able to provide any—that this is a problem, either for members of the public, in respect of new clause 1, or for specific complainants, in respect of new clause 2, I have to question whether these new clauses are required at all. On balance—I accept that it is a fine balance—I do not think that they are required, and should he press either new clause to a Division, I would vote against it, but only because, as he has said himself about legislation to provide updates, there is no need for legislation to require the commissioner to provide this information to the public or a specific complainant.
Mr David Davis
My hon. Friend the Member for Bury North (Mr Nuttall) has presaged Eric Forth’s principle No. 5, also known as the law of unintended consequences, for which reason I hope that my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) will treat his new clauses as probing rather than substantive. One of the risks has already been talked about—that of imposing more work on and therefore slowing down the process of the ombudsman—but there is another one that my right hon. Friend and I, having been in the House for some time, will be used to: where legislation sets prices, targets or whatever, the minimum can become the maximum and the maximum can become the minimum. If an ombudsman’s staff member has to provide a prediction of the likely time it will take to resolve a complaint, not only are they likely to be cautious and, as my hon. Friend said, tick “12 months”, but they might say, “Well, until 12 months comes up, maybe I shouldn’t issue the report at all, in case I discover something I didn’t think of before.” It could thus have exactly the opposite consequence to that which my right hon. Friend intends.
Mr Arbuthnot
Would my right hon. Friend like to reflect on the strange coincidence of the number of Eric Forth’s laws we are looking at and the fact that he hated laws of all sorts?
Mr Davis
Yes, there are laws of nature and there are laws of man, and in Eric Forth’s case, there are forces of nature which sometimes are the forces of man. It is a wonderful paradox, but given that it was my right hon. Friend who provoked me to conjure the five laws, I blame him, not myself.
My right hon. Friend made a very thoughtful speech, and perhaps met Eric Forth’s sixth law, which is that all this has to be tested—that is the point of this House, and it was Eric Forth, more than anybody, who insisted that we did not just shovel through, sausage-like, a set of laws because the Administration or some pressure group wanted them, but that we tested them, and my hon. Friend the Member for Bury North has been doing that this morning.
This reform is likely to be the first of a number picked up by the Executive, not by us. The Public Administration Committee is looking at this, the Department of Health is looking at it, the ombudsman’s office itself is looking at it, and the Cabinet Office is also looking at the issues raised by my right hon. Friend and my hon. Friend. The Executive will be aiming to minimise the number of times complaints are turned down out of hand; to minimise the number of times people are told, “You’ve got the wrong department. Complain to somebody else”; and to minimise the constraints on the ombudsman’s office that might not permit it to intervene; and they will also be aiming to deal with the resource issue. It seems to me that we do not need to solve those problems. It is for the Executive to do so properly in Executive time, with debate going on across the Front-Bench teams. It is for them to deal with that; we are dealing with a simple problem here.
Mr Chope
When my right hon. Friend discussed the Bill in Committee, he contemplated the prospect of introducing amendments at this stage to reflect the outcome of the deliberations taking place in government and elsewhere. In the light of the Government’s failure to deliver a timely response, how much confidence does he have that they have the will to do this?
Mr Davis
A lot of confidence. I do not wish to pre-empt the Government’s forthcoming announcements, but neither do I want to push them into doing anything ill thought through. If the law of unintended consequences applies to anything, it applies to Government legislation—more than anything else. I am confident that this will happen, and in a way that will command support across the House. As my hon. Friend knows, it may be dangerous to make a prediction, but I think there will be agreement. Whatever happens in the general election, I believe these reforms are coming.
The Parliamentary Under-Secretary of State for Health (Jane Ellison)
It is a pleasure to respond to such a thoughtful debate on new clauses 1 and 2, which were tabled by my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot). Given that this is my first response from the Dispatch Box on the Bill today, let me provide a little context before moving on to the specifics of the new clauses.
Clearly, when someone believes that the services offered by the NHS have fallen below an acceptable standard, it is absolutely right that the complaint be investigated properly and efficiently. The Government are committed to putting patients first and improving the experience of making a complaint about the NHS. As part of that, we believe that an effective health service ombudsman is critical to achieving the effective complaints service that patients expect and deserve. This is very much part of our transparency agenda.
The Parliamentary and Health Service Ombudsman carries out independent investigations of unfair, improper or poor service by United Kingdom Government Departments and their agencies and the NHS in England. The health service ombudsman is the second independent stage of the NHS complaints arrangements, dealing with cases not resolved at local level. I think we will all have had such dealings in our constituency work.
The Parliamentary and Health Service Ombudsman, Dame Julie Mellor, had done a good job in challenging circumstances to make her office more transparent and accountable, something to which right hon. and hon. Members have alluded. She has gone about transforming the way in which her office works. She has greatly increased the number of complaints investigated by her office, and complaints are generally reviewed and assessed with excellent judgment and in a timely fashion.
Certain cases, however, suggest that the ombudsman might benefit from legislative reinforcement in working towards further improvement. As the shadow Minister captured in her remarks, any delay in investigating a complaint adds unnecessary distress at what is almost certainly a very difficult moment in an individual or a family’s life. The Government are keen to reduce any delay in investigating cases to reduce the pain of all those involved. Complaints about the NHS of course raise personal or sensitive issues. The person making the complaint, whether it be the patient, the carer or a representative, will be understandably keen to know the outcome as quickly as is reasonably possible.
These two new clauses raise some important points, albeit finely balanced ones. We have had a very good debate this morning exploring where the balance lies. New clause 1 concerns transparency. As I have said, complaints about the NHS may involve the raising of personal or sensitive issues. Whether the complainant is a patient or a carer representative, that person will be keen to know how long the process might take, as we know from our constituency case loads. One of the first questions that a person might ask is, “How long is this likely to take?” That applies both to complaints that are handled by the NHS itself and to companies that are referred to the health service ombudsman in the second, independent stage of the process.
The Government are actively encouraging the NHS to be more open and receptive to complaints, including those made by our constituents. We understand the sentiment behind new clause 1, but we do not feel able to support it. The new clause would require the ombudsman to produce a general estimate of the time it is likely to take for her office to investigate a complaint. My hon. Friend the Member for Bury North (Mr Nuttall)—unsurprisingly—made an acute point when he referred to the danger that the time taken to assess the time likely to be taken might actually add to the time taken. Such a tragic irony would not serve any of our constituents.
A wide range of cases are referred to the ombudsman and subsequently investigated. Some are relatively simple, but others are more complex and take significantly longer to investigate. There are also cases in which people do not know what is not currently knowable. That is the whole point of an investigation. I agree with my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) that, in particularly complex or sensitive cases, it is important not to give an incorrect estimate to someone who is thinking of making a complaint, especially when it turns out to be an underestimate. I am sure we can all think of other contexts in which we give a constituent an estimate of the time that it might typically take to provide that constituent with an answer, the anxious constituent comes back to us within the estimated period, and from that moment a clock starts ticking. During the subsequent period, constituents may feel that they have been let down—or, worse still, may suspect that something in “the system” is preventing them from getting an answer—and their anxiety may increase as a result.
As Members will know from their constituency correspondence, it is not helpful to add unnecessarily to the distress associated with any perceived delay in the investigation of a complaint about any public service, and that applies particularly to complaints about the NHS that may relate to personal, sensitive or possibly even tragic experiences. Complainants’ distress will be exacerbated if a general estimate of the time taken to conclude an investigation does not accurately reflect the time taken when it turns out that there is an unknown—and, at the time when the complaint was lodged, unknowable—complexity to the case.
Like my right hon. Friend the Member for Haltemprice and Howden, I am equally concerned about an estimate based on the longest period within which an investigation might be expected to be completed. I cannot help feeling that there might be a tendency towards officialdom—a tendency to err on the side of caution, and, in order not to be too boxed in by an inaccurate estimate, to opt for the upper end of the time spectrum. Other Members have drawn attention to the need and the desire for transparency, but it would be terrible if as a result of that undue caution—unwarranted, perhaps, in most cases—people who were at their lowest ebb, already feeling unresilient to things that were happening in their lives, were to say to themselves, “I don’t think I can take more than 12 months of this, so I will walk away and not make a complaint.” It would be awful if people did not feel that the system was there to deal with their complaints and worries.
As I have said, the complexity of some cases might become apparent only once an investigation had begun. A complainant might be unintentionally misled, expect an earlier response, and, if that response did not come when it was expected, begin to fear that something untoward was happening, that the wheels were grinding too slowly, or that someone did not care about the complaint. Although none of those assumptions might be true, the complainant’s faith in the system might nevertheless be undermined.
In summary, new clause 1 raises a valid point about transparency and it is good that the House has explored that matter this morning, but I do not feel able to support it, for the reasons that I have mentioned and that the right hon. Member for North East Hampshire also referred to when he explained that the purpose of the new clause was to probe. I hope that he will agree with the points that I and others have raised, and that he will withdraw new clause 1 in due course.
New clause 2 raises the question of good practice in the handling of a complaint, and it has been made clear in other contributions today that the whole House supports that principle. It is of course good practice for any person making a complaint to be given, as soon as practicable, an indication of how long it will take to complete the investigation into the complaint. However, we do not feel able to support the new clause for two reasons, both of which I think my right hon. Friend the Member for North East Hampshire began to arrive at during his speech.
First, the new clause, as drafted, would require the estimate of the period likely to be taken to investigate the complaint to be given to the person at the time at which the investigation began, but there will be cases whose complexity is not apparent at that point. In my experience as a constituency Member—I am sure colleagues have had the same experience—something that seems straightforward at the outset can turn out not to be, particularly when different points of view become involved. That is also likely to happen in NHS investigations such as these. It is particularly important not to give the person making the complaint an estimate that turns out to be too short, for the reasons that I have outlined.
The second reason could be said to relate to some of the Forth principles that we have been hearing about this morning. Good practice involves keeping the person making the complaint updated on progress throughout the investigation, and that is something that any ombudsman would take seriously. There is no evidence to show that Dame Julie and her team would not naturally seek to do that during the course of their work. That would include keeping someone informed of any shift in the estimate of the time likely to be taken to complete the investigation. The proposed new clause makes no reference to that continuing duty.
New clause 2 raises an important point about good practice, but we feel unable to support it because it focuses on giving an estimated time only at the outset of the investigation and not throughout the process, although we might explore this question further in other amendments. I thank my right hon. Friend for probing and giving the House a chance to explore these important issues, but I hope he will agree with the arguments that I and others have put forward, and to which he alluded in his balanced contribution, and that he will not press new clause 2 to a vote.
Mr Arbuthnot
After hearing valuable comments from both sides of the House, I have come to the conclusion that my new clauses would not be helpful and I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 3
Statutory duty of the Health Service Ombudsman
‘It shall be a statutory duty of the Health Service Ombudsman to resolve any complaints within twelve months of the date when the complaint was received.’—(Mr Chope.)
Brought up, and read the First time.
Madam Deputy Speaker (Dame Dawn Primarolo)
With this it will be convenient to discuss the following:
Amendment 3, in clause 1, page 1, line 7, after ‘Commissioner’ insert—
‘before the end of that period’.
Amendment 4, page 1, line 8, at end insert—
‘together with an estimate of the target date for completion of the investigation.’
Amendment 1, page 1, line 8, at end insert—
‘(b) The Commissioner shall subsequently keep the complainant informed, as far as reasonably practicable, as to the progress of the investigation.’
Amendment 5, page 1, line 8, at end insert—
‘( ) If the reason for the delay specified in Section 2HA is lack of financial resources it shall be the duty of the Commissioner to set out the action which is being taken to remedy that lack of financial resource’.
Amendment 2, page 1, line 15, leave out ‘, and’ and insert—
‘(ba) the reasons for each of those delays, and’.
Mr Chope
The new clause would simplify the Bill enormously. It would require the health service ombudsman to resolve any complaint within 12 months of the date on which it was received. As we are paying tribute to my late friend Eric Forth, may I say that the new clause would have commended itself enormously to dear Eric, because it puts on the tin what people say we want to put on the tin. With the greatest of respect to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), I think he has been timid in his Bill. We know that 99% of these cases are dealt with within one year. The new clause would require that 100% of them be dealt with within one year, and there would also be a sanction, because a breach of a statutory duty can be justiciable. That would concentrate minds. If it looked as though a complaint was being dealt with slowly, the health service ombudsman would be able to say, “You’ve got to get a move on because we’ve got a statutory duty to resolve this within one year.”
Stephen Pound (Ealing North) (Lab)
I am not sure whether the hon. Gentleman heard the comments by the Minister on the previous group of amendments but I think she addressed that point precisely. There is a complexity within the system that cannot be anticipated, and it would artificially fetter the discretion of the commissioner if an arbitrary time limit were put in place. Does he not agree that there are occasions when the complexity is such that we simply cannot fix the rigid metallic corset of a time limit on it without diminishing the value of the investigation?
Mr Chope
With the greatest of respect to the hon. Gentleman, I do not accept that, which is why I tabled the new clause. As he says, the Minister was addressing new clauses 1 and 2, and I would not at this stage anticipate her response to the debate we are now having on new clause 3. If a statutory duty is in place, minds will be concentrated. That means that the ombudsman would, for example, be able to explain to a complainant who it was who was not providing the information that was necessary in a timely fashion and say, “If we don’t get a move on, your complaint will be time-barred because we will dismiss it on the basis that we have a lack of evidence.”
Jacob Rees-Mogg (North East Somerset) (Con)
Following on from the point made by the hon. Member for Ealing North (Stephen Pound), may I say that I am not entirely sure that corsets are normally metallic—I believe they are generally made of whalebone? Leaving that aside, I wonder whether my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) ought to be introducing a shorter time limit, because we all know that work expands to fill the time available. [Interruption.] Parkinson’s law, indeed. As soon as a 12-month time limit is introduced, that is the time that will be taken. If 95% of complaints are being dealt with within six months, six months would seem to be quite a good limit.
Mr Chope
I agree with my hon. Friend. It is a pity that he did not put down an amendment to my new clause to replace the limit of 12 months with one of six months. We know that the Bills that we debate on Fridays involve an iterative process. If the new clause were accepted today by my right hon. Friend, we would start off with a 12-month limit, which might in due course move to six months. That deadline, which will have the effect of concentrating minds, makes the measure legally meaningful, whereas, at the moment, everything in the Bill is legally meaningless. The Bill is, as someone has said in relation to the draft clauses of the Scotland Bill, “legally vacuous”.
Mr Arbuthnot
How does my hon. Friend deal with the problem that there might be some issues that are outside the control of the ombudsman? For example, the ombudsman might be hoping for a response from a health provider that he is simply not getting. How would the ombudsman then obey the statutory duty that we would be applying?
Mr Chope
Unlike quite a lot of organisations, the ombudsman is accountable to this House. If the ombudsman were experiencing the difficulty to which my right hon. Friend refers, I would expect the ombudsman, the chief executive or chairman to contact my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and say that they wished the Public Administration Committee to look into the matter and put pressure on the recalcitrant Department. In a sense, my right hon. Friend is saying that, because we may have customers—if that is the right expression—who are minded to delay things, we should facilitate enabling them to delay things beyond a year. We need to focus on who the real customer is. The customer is the person who has made a complaint, and whose complaint has been accepted for investigation by the ombudsman. In my view, they are entitled to have a decision on that complaint within 12 months, which is why I put in this statutory duty.
Jacob Rees-Mogg
It occurs to me that, for once, my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) is wrong. If a public body failed to respond to the ombudsman, it should be found against and that would be quite a penalty and an incentive not to procrastinate.
Mr Chope
Again, my hon. Friend makes a first-class point. I hope that, when the Minister responds to this short debate, she will support the line that is being taken. We need to ensure that there is no scope for statutory bodies to avoid their responsibilities to deliver and that we facilitate the ombudsman to reach a result within 12 months of a complaint being made.
At the moment, the ombudsman is dealing with about 4,000 complaints a year, some 3,000 of which are related to health. The cost of those complaints to the taxpayer is about £4,000 a time. As the taxpayer is investing that amount of money, a reasonable return on that would be to say that those complaints should be dealt with in a maximum period of one year. If we pass new clause 3 and include it in the Bill, we will have a useful piece of legislation, instead of an empty vessel—although even an empty vessel with the name of my right hon. Friend the Member for Haltemprice and Howden on it will be cherished by many people, especially his constituents.
Amendment 3 is more specific. It will require the commissioner, in fulfilling the obligations set out in clause 1, to explain the delay before the end of the 12-month period, rather than after it. At the moment, there is a lacuna here—perhaps it is a deliberate one—to ensure that the minimum pressure is applied, which will show that we are just engaged in gesture politics. I hope that that is not correct. As it stands, clause 1(2) says:
“Where the Commissioner has not concluded an investigation before the end of the 12-month period…the Commissioner must send a statement explaining the reason for the delay to the person who made the complaint.”
But it does not say when the commissioner should send that statement. Unless there is a requirement on the timing of that statement, the measure is completely meaningless. It may be that that statement will be sent at the same time as the ultimate decision is made. In an effort to make the Bill do what my right hon. Friend wants it to do, which is to put pressure on the health service commissioner to deal with complaints in a timely fashion, I am suggesting a modest amendment.
Amendment 4 is on the same theme. When that statement is sent, it would not just explain the reason for the delay, but contain an estimate of the target date for completion of the investigation. I accept that, in itself, that would not be much use, because if there is another target date—it could be in another year—there may still be no remedy for the complainant. At least, though, it would force the ombudsman service to apply its mind to how much longer it thought it was reasonable for the investigation of the complaint to take.
Amendment 5 brings us into a slightly different territory. I suspect that a main reason for the delay in dealing with these complaints is a lack of resource. The amendment would add to clause 1 the words:
“If the reason for the delay specified in Section 2HA is lack of financial resources it shall be the duty of the Commissioner to set out the action which is being taken to remedy that lack of financial resource.”
Again, if the delay is due to financial reasons, it is surely important that the world outside, and particularly the complainant, should know about that so that they can make the necessary complaints. It is also important that the ombudsman is able to say, “Well, because of a lack of financial resources, I am not able to deal with these cases as quickly as I would have wished. Therefore, I am asking Parliament for more money to help us meet our case load.”
There is a £15 million budget for this exercise. Each case currently costs some £4,000 on average. The average compensation payment that was paid out in 628 cases amounts to less than £1,000. I am not sure that anyone coming from another planet and looking at this system would say that it is financially well focused. The average cost of dealing with a complaint is over £4,000. The average amount paid to a successful complainant is just less than £1,000. That shows that there is a potential problem in relation to the funding of the ombudsman service. That may be exacerbated by the ombudsman’s decision to take on more complaints for investigation by “lowering the threshold” for investigating such complaints. As the annual report makes clear, the consequence of that is an increase in the number of complaints being investigated, only a reduced proportion of which is being concluded in favour of the complainant. Expectations among the complainants are being raised, but they are not being delivered on by the ombudsman because a lot more cases are being taken on which probably should not have been taken on in the first place. The report states that because the ombudsman is
“taking on many more investigations than before, the proportion of investigations…upheld or partly upheld has inevitably declined”.
I think that the expression “inevitably declined” is a bit of an underestimate, because it has declined from 86% to 42%, which is a dramatic reduction in one year.
Mr Arbuthnot
Might one not read that in a positive way by saying that if the complaints are found not to have been justified, that suggests that the national health service is doing a pretty good job?
Mr Chope
I do not go along with that, I am afraid. It is rather like saying that we should encourage the maximum number of complaints against something, engaging bureaucracy and taxpayer expenditure to deal with the complaints, to give some perverse satisfaction to the people who want to say that the Government service, in this case the health service, is doing a good job. If we want to measure consumer satisfaction with public services, there is a much more direct way of doing it than looking at how many complaints against their services have been made and rejected.
By way of an aside, one difficulty with the ombudsman service is that it cannot take on complaints from public sector organisations. In my constituency, for example, a head teacher of a school that was unfairly done down by Ofsted was told—or it was implied—that he could complain to the ombudsman service, but the ombudsman service deemed his complaint to be outside its scope. Although he is an individual, as he is the head of a school, Ferndown upper school, the complaint is regarded as coming from a public organisation and therefore does not come within the scope of the ombudsman’s rules. I would prefer to see the scope of the ombudsman to investigate issues widened, while keeping a focus on complaints that are prima facie likely to be well founded, to going down the road of saying that we should have many more complaints and that when we reject those complaints it means that the public services are doing very well. That is where I would disagree with the ombudsman service’s strategy, which is to try to maximise the number of complaints.
When people make complaints, it often involves quite an effort on their part and they normally make them on the basis that they expect a positive result. They do not make them hoping that their complaint will be rejected, thereby endorsing the national health service, local government organisation or other body for performing in a way that did not result in the complaint against them being justified. The best organisations are organisations that have no complaints against them and I should have thought that that was what we should be aiming for—a health service in which there were no complaints, or in which all the complaints were dealt with long before they came before the ombudsman.
Those are my amendments. I shall leave my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) to address his amendments 1 and 2. If some of these amendments were accepted, I think the Bill might have some worth and value.
Mr Arbuthnot
My hon. Friend the Member for Christchurch (Mr Chope) suggests that I might like to address amendments 1 and 2. During the last debate, my hon. Friend the Member for Bury North (Mr Nuttall) pointed out that I was not suggesting that the health service ombudsman should keep the complainants properly informed and I said that I was persuaded that it was not actually necessary to do so. What I should have said was that I had proposed an amendment to do so in the next group of amendments, but during the course of that debate I persuaded myself out of the value of amendments 1 and 2 so I think it would be best for me simply to sit down and not move them. What my hon. Friend the Minister and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) said in answer to that debate satisfied me that more detailed legislation for the ombudsman, apart from the extent to which my right hon. Friend wishes to change the law, is probably not helpful.
In answer to my hon. Friend the Member for Christchurch, I do not agree with the rather rigid approach that his new clause 3 might introduce. Inevitably, there will be some complaints that are so complicated and in which so many people are involved in answering the issues that it would be a bad idea to place on to the ombudsman a duty that, with the best will in the world, they might simply not be able to fulfil. During the course of the morning I have been looking for a quotation from Idi Amin, referring to someone who had displeased him. He said, “When we catch him, he will be executed. He will have a trial, of course, but by trial I do not mean one of those things that goes on all day.” I think that that is the approach favoured by my hon. Friend in the new clause. I hope that he will forgive me if I do not support his new clause and fail to move my amendments.
Mr Nuttall
I do not intend to detain the House for long on this group of amendments. Suffice it to say that I think there is merit in new clause 3, to the extent that it concentrates the mind of the ombudsman. At the moment, there is simply a requirement to report and that is the end of it. If nothing seems to be done, it just carries on. My concern is that the whole object of the Bill is to stop the situation that occurred in the case that led to its introduction, in which an investigation carried on for the best part of two and half years. As I read the Bill, it seems to me that there would be nothing to stop that happening again. A case could be reported as being outstanding in the annual report at the end of year one, and at the end of year two it could still be outstanding and nobody other than the complainant and the ombudsman’s staff would know anything about it.
Amendment 3 places a requirement on the commissioner to notify the complainant before the end of the period and again that seems to me to be eminently reasonable. Given that the purpose of the Bill is to try to get things dealt with within 12 months, it seems sensible that if it is apparent to the commissioner that that will not be the case, they should inform the complainant before the end of the period. Otherwise, quite legitimately, the complainant will expect the result at the end of those 12 months if they have not heard anything. It is pretty sensible to expect that. Whether that would happen anyway remains to be seen.
Amendment 4 would require the commissioner to provide at the same time an estimate of the target date for completing the investigation, which seems very sensible. The commissioner would say, “Look, we’ve not quite managed to do it in 12 months, but we certainly will in another three.” I see no reason why that should not be set out in the Bill.
I am pleased that my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) decided not to proceed with amendment 1, which relates to keeping complainants informed, as we dealt with that in the previous group. Everyone agreed that that was not a matter for legislation but should happen anyway as a matter of good practice.
I am rather less happy that my right hon. Friend has decided not to proceed with amendment 2, which would insert after subsection (4A)(b) the words
“the reasons for each of those delays”.
The general report, as set out in subsection (4)(a), should include details of how long investigations concluded in the year to which the report relates took to be concluded and how many of them took more than 12 months. That means giving a stark figure, for example saying, “We had 30 investigations outstanding at the end of the year.” It seems sensible also to require the reasons to be included. That would allow us to drill down and find out exactly what is causing the delays.
That leads me neatly to amendment 5, which stands in the name of my hon. Friend the Member for Christchurch (Mr Chope). It would insert the following provision:
“If the reason for the delay specified in Section 2HA is lack of financial resources it shall be the duty of the Commissioner to set out the action which is being taken to remedy that lack of financial resource.”
I am reluctant to support that. In my humble opinion, it is almost certain that any public official will reach the conclusion that what they really need to make their job easier and speed up the service they provide to the public is more resources. Unless we expect them to start having jumble sales and raffles—we have all tried using our own resources in that way to raise more funds—really the only thing they can do is come to Parliament and—
Jacob Rees-Mogg
My hon. Friend makes an absolutely brilliant and incisive point, because has not the whole lesson of the past five years been that public services have been able to deliver more with less? That should also be true of ombudsmen, and therefore the amendment is otiose.
Mr Nuttall
I am grateful to my hon. Friend. That has indeed been the lesson of the past five years, and we have seen some sparkling examples of people in the public sector doing more with less—our police service, for example. The same is true of the ombudsman. They have said that they have lowered the threshold and changed the way they work in order to try to meet demand so that fewer inquiries from the public are turned away.
Jacob Rees-Mogg
It occurs to me that that allows me to say that that is all thanks to our long-term economic plan—the first time I have managed to get those words into Hansard.
Mr Nuttall
My hon. Friend has achieved his wish.
I think that what is set out in amendment 5 would fall into a set pattern, with the commissioner saying every year, “Well, if you gave us a bit more money, we’d have a few more staff and things would get better.”
Mr Chope
With the greatest respect, I think that my hon. Friend misunderstands the amendment. The idea is to increase transparency so that rather than the commissioner being able to complain sotto voce that this is all because they do not have enough money, that would have to be brought into the open, and then the very points that he and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) have been making about the ability of many public sector organisations to get a lot more bang for their buck could be exposed to public debate.
Mr Nuttall
I am grateful to my hon. Friend for that clarification. He suggests that the amendment is purely about transparency, which means it has more merit than I had accorded it.
Mr David Davis
Following that point from my hon. Friend the Member for Christchurch (Mr Chope), I think there is a risk that the amendment would transform the role of the Public Administration Committee, which currently provides oversight and acts as the guardian of ombudsmen, turning it into a champion for more money. I think that would be quite dangerous. I do not want to see the Committee go from being a regulator, comptroller and holder-to-account to a champion for more money.
Mr Nuttall
I am grateful to my right hon. Friend for that point, which I suspect adds weight to my opposition to amendment 5. I appreciate what my hon. Friend the Member for Christchurch has said about transparency, but I suspect that in press releases and in evidence given before the Committee the ombudsman would be able to do that anyway. When questioned about the reasons for delays, they would feel that they could easily say whether it was down to resources, either in public utterances to the media or more formally in evidence to the Committee.
Mr Davis
I started off being flattered by the suggestion from my hon. Friend the Member for Christchurch (Mr Chope) that I had been in some way seduced into mitigating the Bill, but I think that I am far beyond the point at which seduction, either metaphorical or real, is an option. Perhaps that is why, when it comes to new clause 3, which I think is the most substantive amendment in the group, I am not as much of an expert as the hon. Member for Ealing North (Stephen Pound) and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) appear to be on the subject of corsets. As I understand it, corsets constrict things at one point and let them out at another. The risk in new clause 3 is that it would put such constraints on the ombudsman that problems would be created elsewhere.
There have been two problems with the operation of the ombudsman over the past few years: not meeting timetables and making mistakes. On a number of occasions the ombudsman has got things wrong, which has made things even more acutely painful for the people seeking help and support, because the ombudsman has had to go back and correct mistakes. Indeed, that happened on a number of occasions in the very case that is at the centre of this piece of legislation. Were we to go down this route, we might create a series of problems arising from the ombudsman making erroneous recommendations and proposals, which would of course lead to the issues being multiplied down the generations, rather than dealt with straightaway.
We must also remember that some of the issues that the ombudsman deals with not only require information from other Departments and other parts of Government, but sometimes involve contested arguments and may have legal liability associated with them, so we should not forget that there is a natural justice aspect to this. Finally, these issues are very often on the edge of science. The sepsis problem was one such issue, for which the medical profession is still seeking new solutions. We should be wary of going so far on this that we cause another set of problems. That is why I think the Bill as printed strikes the right balance.
Mr Davis
I am not sure that the legal liability relates simply to the person bringing the complaint. It could relate to other people too, such as those contracting services. It also relates very much to reputation. Someone may, in effect, be asked to make a confession according to a timetable, which is not a good idea in a statute.
I agree with my hon. Friend the Member for Bury North (Mr Nuttall) in his critique of amendment 5. On amendment 4, I would leave that to practice guidelines, rather than putting it into law. It is dangerous, as I said earlier, to create lots of onerous responsibilities in law. The aim of the Bill is to exert pressure and give a degree of public guarantee, not to try to tell the ombudsman how to cross every t and dot every i.
The one amendment with which I felt some sympathy but am still uncertain about is amendment 3. I presumed from the Bill that the ombudsman’s department would respond close to the 12-month point when it knew that it might go past it. Earlier, it is likely to have to adjust the timetable; later is not tolerable. I am uncertain whether it may lead to perverse or unintended consequences if we do exactly what my hon. Friend the Member for Christchurch has proposed. I will have to think about that. The Bill has to go through a Lords stage. I ask my hon. Friend not to press the amendment today, but I give him an undertaking that I will look at the matter closely and see if I can come up with a form of words that I can suggest as a change in the Lords; I will let him know if I am not able to do that.
Luciana Berger
I shall not speak for long, but I think it right to respond to the contributions, and to speak on the options proposed by the hon. Member for Christchurch (Mr Chope). As we know, new clause 3 proposes to make it a statutory duty for complaints to be resolved within 12 months. We do not think that that is necessary. It is clear that the Bill sets out sufficient steps to achieve that. I agree with the right hon. Member for Haltemprice and Howden (Mr Davis) that, as we know, the overwhelming majority of cases are dealt with within that time, but there are obviously reasons why it may sometimes take longer. As hon. Members suggested, there may be complex cases, other agencies may be involved, or there may be a historical or long-running case that requires the extraction of data from decades past, which it may take a long time to collate. It is often not the ombudsman’s fault that these things take time. We therefore do not think it appropriate to make meeting the 12-month deadline a statutory duty.
On the amendments, it is proposed that when the ombudsman contacts complainants, she gives them an estimate of how long the investigation might take. We discussed the point earlier in relation to new clause 2. We Members of Parliament can get updates from the ombudsman on the progress of cases and share those with our constituents if they want further updates. To be fair, if we think about all the processes in which we support our constituents, this is one in which updates are provided, and complainants are provided with information about how their complaints are progressing and when an outcome might be provided.
Amendment 1 would require the commissioner to keep the complainant informed of progress. There is nothing wrong with this in principle. We should encourage the ombudsman to do this anyway. As I mentioned, as Members of Parliament supporting those complaints, we can receive updates. On the point about financial resource, I have looked closely at the amendment and listened to the debate this morning, and think that where delays occur in the progress of complaints, more often than not that is down to the complexity of the cases, rather than a lack of financial resources, so amendment 5 is not necessary. We do not believe that new clause 3 or the five amendments are necessary.
Jane Ellison
I understand the sentiments behind new clause 3, tabled by my hon. Friend the Member for Christchurch (Mr Chope), and each of the five amendments. I shall try to respond to some of the points that have been made, without reiterating them.
New clause 3 would place a duty on the health service ombudsman to resolve any complaint within 12 months of the date it was received, regardless of its complexity. We all have sympathy with the reason behind it, and we all want investigations by the health service ombudsman, and indeed the NHS, carried out as efficiently as possible. None the less, it would be wrong to rush cases, or to seek to put an artificial time limit on them. What is most important to us as Members acting on behalf of our constituents is that the investigation is conducted appropriately and robustly, which depends on the facts of the case. This is particularly true, as others have said, when the investigation deals with serious or complex issues.
We are all familiar with the fact that the cases investigated by the health service ombudsman generally tend to be complex and serious because they often involve an element of loss, personal tragedy, illness or disability, so they are inevitably sensitive. It is important that those investigations are conducted in a timely fashion, but on the odd occasion when they need to continue beyond the defined period, it is important that there are not artificial constraints, and that we do not constrain the handling of a complaint by focusing on the deadline, rather than the requirements of the case. That may have an unintended impact on the quality of the investigation and the complainant’s expectations about the outcome.
The Bill as drafted will hold the ombudsman more accountable for delays of over 12 months than at present, which is right, but it acknowledges that there will be some cases, albeit very few, where it is appropriate and justifiable for an investigation to take longer. Some of my right hon. and hon. Friends have alluded to the reasons for that. In other aspects of my portfolio, I have seen some of those reasons. My hon. Friend the Member for Christchurch made a working assumption throughout his comments that one reason may be delay on the part of the investigator, but sometimes it is due to other players in that investigation.
In another part of my portfolio, something extremely important has been unexpectedly delayed by the bereavement of the chief investigator. That could not have been anticipated, but it has added greatly to the delay. Cases brought to the ombudsman nearly always involve illness, and evidence may need to be taken from someone who is still ill or in recovery. It may be difficult to get that evidence, or to ask them to respond to a point made during the investigation. If the person is still suffering the effects of their illness, there may need to be an appropriate delay to allow them to recover sufficiently to give their evidence.
The Bill’s promoter, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), made an extremely good point about expertise. Complex medical issues are rarely black and white. In a debate that has already alluded to corsets and seductions, I hesitate to speculate on the number of shades of grey that might be involved in investigations, but it is clear that they exist. Sometimes, tracking down the right expert may be not a national endeavour, but an international endeavour, if the case involves a rare illness or there is a dispute about the medical opinion. Drawing on my experience of nearly 18 months as a Health Minister, I know that that is sometimes the case and we should allow for it, because it would not benefit the investigation if we did not. For those reasons, I hope that my hon. Friend the Member for Christchurch will agree not to press the new clause, and that he will feel not that he is condoning poor or slow administration, but that he is merely accepting that some things just take longer to address.
Mr Chope
May I thank everybody who has participated in this debate and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), the Bill’s promoter, for his generous offer to at least consider amendment 3? I do not mean to be churlish, but it is a problem that we are debating the Bill on the penultimate private Members’ Friday. If my right hon. Friend were to choose, on reflection, to incorporate amendment 3 in an amendment in the other place, he would, in effect, jeopardise his Bill, because we would then have to consider it again after it had been amended. The Minister has indicated her potential support, so perhaps she would like to intervene on me to guarantee that, should that eventuality arise, the Government would give the Bill the necessary time to ensure that it was not frustrated by that process but reached the statute book. I must say that I am tempted to press amendment 3 to a vote, because it might be easier to include it in the Bill now rather than have a promise that something will be done later.
One could sum up this debate by saying, “Excuses, excuses, excuses.” It is so easy for public sector organisations to make excuses about why they cannot meet particular time limits.
Mr Arbuthnot
My hon. Friend has made a valid point about the remaining number of private Members’ Fridays. I hope that the ombudsman will at least read this debate and recognise that it would be best practice to put into her report the relevant time—in other words, as amendment 3 says,
“before the end of that period”.
Mr Chope
I am grateful to my right hon. Friend for putting that suggestion, which could help, on the record.
On the issue of excuses, I fear that we are entering the territory of double standards. When my constituents who are company directors are required to submit their company accounts by a particular day and fail so to do, or when other constituents are required to submit their tax return by 31 January and fail to do so, that failure incurs a penalty of £100 and there is no room for excuses such as family bereavements, delays by accountants or third parties and all the rest of it. In relation to the excuses made by Departments, or the ombudsman in this case, on which we want to place similar obligations, we are not consistent.
Mr David Davis
My hon. Friend has made a minor slip. The ombudsman is not a Department; it oversees Departments, responding to and being overseen by a parliamentary Committee.
At the end of the day, my hon. Friend may have a very good point about the timing of amendment 3. If he is right, the alternative would be for me to make it very plain to the ombudsman that that is what Parliament expects. It is certainly what I expect and what I intended in drafting the Bill. Rather than jeopardise the Bill, we should make sure, as is very easy to do, that the ombudsman understands that point, as does the parliamentary Committee overseeing it, which is our final recourse.
Mr Chope
My right hon. Friend is right to say that we are talking not about a Department but about a parliamentary sponsored organisation that tries to hold the Government to account. Yesterday, the House discussed the whole saga of Equitable Life, and what a long drawn-out saga it was. We know that the ombudsman tried desperately to get timely responses from the Treasury and other Departments, and was frustrated at every turn. Looking back at that, we can see that being able to say that she had a statutory obligation to deliver the result of an inquiry within a particular period would have helped rather than hindered her in the work she had to do.
Jane Ellison
I completely understand my hon. Friend’s point. I tried to draw out the fact that the interests of complainants may not be served by the proposal. As we all know, serious and complex complaints sometimes involve a death or serious injury, which means dealing with a bereaved family. The course of events over the 12-month period may not run smoothly for the very people making the complaint and wanting it to be resolved sensitively, sensibly and properly. This is not about Departments or the NHS making excuses, but about acknowledging that the sensitivities of the complainants and their loved ones mean that the ombudsman needs a little more time in some instances.
Mr Chope
I hear what my hon. Friend says. In essence, the more usual scenario in cases of bereavement is that people want what they describe as closure sooner rather than later. The Bill has been introduced to emphasise that it is the will of the House that such matters should normally be dealt with within 12 months.
Mr Davis
My hon. Friend is wrong about one thing: the ombudsman’s power rests on trust in the accuracy of the case that he or she makes. Equitable Life’s problems did not arise from that, but from the complexities of moral hazard and other such issues. A better example was the case of the state earnings-related pension scheme, in which the ombudsman, the Public Administration Committee and the Public Accounts Committee, under my chairmanship, was able to get the Government to pay out what turned out to be billions of pounds because of errors identified from accurate—though not, as it turned out, fast—investigation. The things we must not jeopardise are the accuracy and effectiveness of the ombudsman’s investigations.
Mr Chope
My right hon. Friend gives an example of which he had direct experience. All I can say is that it is a pity that people who present their tax return late are not allowed the same indulgence—saying that their affairs are very complex, or that their accountant let them down—to avoid a penalty. There is an issue with ensuring consistency in the rules.
We have had a good run round the circuit on this matter. As in the previous debate, this again emphasises that, as Eric Forth said, Bills should never go through on the nod without proper discussion. Although people may have looked at the Bill and thought it a pretty minor piece of legislation, even such a Bill—I have not seen many that are more minor—is worthy of discussion to work through its implications. Having said that and thanked hon. Members for their contributions to this short debate, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Third Reading
Mr David Davis
I beg to move, That the Bill be now read the Third time.
I am delighted that the Bill has reached this stage. My hon. Friend the Member for Christchurch (Mr Chope) may think it is minor, but I do not think it will be minor for the people whose lives it will affect, whose complaints are dealt with more quickly and who will get closure more briskly as a result.
I want to take this opportunity to thank colleagues who have been supportive throughout the process, especially those who helped me to take the Bill through Committee. I thank colleagues who have helped me to meet some or all of Eric Forth’s six rules of good legislation, which is important and should particularly be borne in mind with private Members’ legislation.
As other Members have said, the original raison d’être of the Bill was the Sam Morrish case. However, it is not only about that case; all of us have had constituents with cases involving such important and recurrent issues. It is worth recounting the Morrish case because it highlights those issues very well.
In June 2014, the health service ombudsman published the report on an investigation into the care and treatment provided to Mr and Mrs Morrish’s son, who tragically died of septic shock on 23 December 2010, at the age of three, after a series of avoidable errors. In the three days before he died, his family dealt with the Cricketfield surgery, Devon Doctors Ltd, NHS Direct and the South Devon Healthcare NHS Foundation Trust. We have talked about the involvement of different organisations—all those organisations were involved, and they all failed in their duty to young Sam. His septic shock was misdiagnosed several times as he passed through the system. At each of the stages, what went wrong should have been corrected straight away, or as soon as possible thereafter.
In the report on Sam’s death, the ombudsman highlighted the lack of action taken to save the lives of people suffering from sepsis. The key point is that the ombudsman’s investigation is not just to address the complaint, but to prevent such cases happening again. She stated that the case demonstrated that the failure to diagnose and treat sepsis rapidly can have tragic consequences. Crucially, she found that Sam failed to receive appropriate care and treatment, but that had he done so, he would have survived.
The contents of the eventual report were commendable, but it took the ombudsman more than two years to investigate and report on the national health service’s handling of Sam’s case. During that time, a series of factual errors were made, which Mr and Mrs Morrish repeatedly had to correct; that must have been awfully painful, but we cannot address that aspect of the issue in this Bill. As a result, the Patients Association, which supported the Morrish family in their complaints, said that the ombudsman was not “fit for purpose”. The ombudsman apologised to the family personally:
“We took too long to investigate this case and made errors in the draft report. I recognise the family’s experience of us has contributed to their distress”,
which is to put it mildly.
As my right hon. and hon. Friends are only too aware, Sam Morrish’s case is not a singular instance, but something that comes up time and again. The stringing out of complaints in the NHS only causes further distress to patients and their families. There is a danger that such delays will lead to the underlying problems remaining unaddressed and uncorrected. When things go wrong, it is vital that lessons are learned. By improving the ombudsman service, we will take a small step towards ensuring that they are.
Although the ombudsman service is committed to changes that will require it to meet a timetable and, if it does not, to explain why, the future management of the service might not be as good as its current management. That is why the legislative backing is being provided. The Bill is just legislative backing; it is a guarantee. It will give the organisation the power to meet what should be a self-evident aim.
The Bill is straightforward, simple, not that minor and absolutely non-partisan. It has wide support across the health service, the ombudsman service and both sides of this House. The simple aim is to improve the effectiveness of the health service ombudsman, who is the final tier of the national health service complaints system and often the last port of call for distressed patients and families. The Bill achieves that goal primarily by requiring that when the health service ombudsman takes action, they do so with a view to concluding the investigation of complaints within 12 months. If that time scale is not met, they must explain why to the complainant.
The Bill is a first step. I expect that in the new Parliament, there will be a complete review of the ombudsman service and the complaints mechanisms that feed into it. That will be an unalloyed good because too often, as my hon. Friend the Member for Christchurch said, Departments are too slow, too unaccountable, too prone to excuses and not sufficiently committed to delivering the service our constituents want. The Bill intends to rectify that.
The current ombudsman, Dame Julie Mellor, has done a very good job. The Bill intends to reinforce that and to ensure that it is continued in the generations to come.
Madam Deputy Speaker (Dame Dawn Primarolo)
I call Mr David Arbuthnot. I’m sorry—James.
Mr Arbuthnot
I want to say briefly that when we deal with a Bill about complaints against the national health service, we inevitably concentrate on the complaints. However, an essential part of this debate should be a recognition that, by and large, the national health service does a fantastic job and its doctors, nurses, managers and support staff are dedicated to the improvement of people’s lives, with what has recently been described as “institutionalised altruism”. The national health service is a wonderful part of our national life. We are not going to privatise it. It is an icon that we mess with at our peril. Nobody will succeed in persuading people that we are going to privatise it. If we were stupid enough to try such a thing, we would lose the election and the public know that. We need to say that time and time again.
For all its wonderfulness, from time to time the national health service slips up and makes a mistake. That will not happen on the majority of occasions or even on a hugely significant number of occasions proportionately, but when things go wrong, the question is how we deal with the mistakes. Do we cover them up? The answer is no we do not. We have to listen. Inevitably, the ombudsman will get things wrong from time to time. My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) referred to one tragic case in which that happened. The question is how we deal with such mistakes.
My right hon. Friend’s Bill is an excellent step in improving things. It is not a minor step, but a very important one. It will add to the openness with which the ombudsman deals with things. It needs and deserves the support of the House.
Madam Deputy Speaker (Dame Dawn Primarolo)
To equal out my mistake, I suppose that I should call James Nuttall. [Laughter.] But I won’t. I will call David Nuttall and apologise to Mr Arbuthnot for my mistake.
Mr Nuttall
There is a haulage contractor in my part of the world who bears the name James Nuttall. I am sure that he will be flattered that his name has been mentioned.
I congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on piloting the Bill through to Third Reading. Although he came 19th in the ballot, had the draw been done in the traditional way, he would have come second and piloted the European Union (Referendum) Bill, which would have been a slightly weightier task.
Mr Nuttall
Yes, I am afraid so. That Bill is not going to reach the statute book.
I hope that this Bill does reach the statute book. It is a short Bill. As the promoter said, it is simple and straightforward. It aims to set a clear target for the ombudsman to operate within. When the target cannot be met, it requires that reasons be given.
As was mentioned at the outset this morning, this is the first time the Bill has been debated on the Floor of the House. The exploration of the matters that were raised on Report was therefore useful, because it teased out matters that could usefully be considered in the forthcoming review and examination of the ombudsman’s procedures. I am sure that those who conduct the review will read this debate and reflect on those matters.
I wish the Bill well this morning. I am sure that it will receive a Third Reading. I also wish it a speedy passage through the other place in the days that remain before the Dissolution of this Parliament.
Mr Chope
I hope that I have not been too harsh on my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) in the course of this debate.
In preparing for Third Reading, I looked at the explanatory notes to the Bill. The summary states:
“The Health Service Commissioner for England (Complaint Handling) Bill seeks to increase the effectiveness of the Commissioner (known as the Health Service Ombudsman), who is the final tier of the NHS complaints system. It does so primarily by requiring the Health Service Ombudsman to take action with a view to concluding investigations of complaints within 12 months”.
The Bill does not actually do that. That is my concern. I fear that the Bill is in danger of raising expectations, because it does not require the health service ombudsman to do anything to bring forward a resolution of complaints within 12 months. All it does is to say that if she does not, she has to include references in the annual report and communicate with the complainant.
Even on the basis of the summary in the explanatory notes, I fear that the Bill falls short of the expectations of its promoter. Obviously, if we are in the business of littering the statute book with more pieces of legislation, there is no reason why this one should not be added to the others.
Luciana Berger
I add my congratulations to the right hon. Member for Haltemprice and Howden (Mr Davis) on the progress of his private Member’s Bill, which contains important reforms that we support.
The measures will rebalance the complaints procedure in favour of the citizen and away from the bureaucracy. If someone feels that they have been mistreated or have been the victim of a medical accident or malpractice, they deserve swift redress. What many complainants want is a clear decision, communicated swiftly, and assurances that the medical procedures and administrative processes have changed to prevent unnecessary harm or pain from happening to someone else. In fact, only last night, I met one of my constituents who is going through the process, and their primary motivation is that no other friend or family member should experience what they have gone through.
For most complainants, it is not about financial compensation. It is about justice. When a service such as the NHS lets someone down, the injustice feels so much worse because of the high regard in which it is held. I echo the comment of the right hon. Member for North East Hampshire (Mr Arbuthnot) that we should commend the thousands of men and women who work in our national health service and do such a wonderful job on a daily basis, but there are of course occasions when things do not go right. That is why the Bill is so important.
Long delays in getting answers to complaints merely exacerbate a problem and build a sense of grievance and alienation. People feel like they will never get answers and are being strung along, and of course that is not good enough. The right hon. Member for Haltemprice and Howden should therefore be congratulated on his Bill, which is entirely straightforward and has a simple, non-partisan approach and purpose. As others have said, it has wide support throughout the health service and in the ombudsman service itself, and I hope it will have support in all parts of the House when we conclude the debate.
Anyone listening to the tragic case of little Sam Morrish, which the right hon. Gentleman outlined this morning, cannot fail to recognise that this reform is needed. As the House has heard, it took the ombudsman more than two years to investigate and report on the national health service’s handling of Sam’s case. During that time, a series of factual errors were made, which Mr and Mrs Morrish repeatedly had to correct. It is fair to say that they were let down badly by the NHS. They lost their little boy, and the process that they had to endure to seek justice and redress took too long and compounded their tragedy. They deserve every ounce of sympathy that the House is capable of offering. I hope that they are listening and hear that we really are on their side.
The Patients Association, which supported the Morrish family in their complaints, said at the time that the ombudsman was not fit for purpose. Hon. Members of all parties will have had to refer constituents’ treatment in the NHS to the Parliamentary and Health Service Ombudsman, and some of those cases—not many—will have taken a great deal of time to be processed. One thing is clear: when the ombudsman falls short, it is essential that it is open and transparent. The idea of an annual report setting out the details of how long investigations and complaints have taken to be concluded is welcome. It makes a great deal of sense, because it will allow the public to see the amount of work that the ombudsman has had to do in a 12-month period and understand why, in some cases, it has had to take longer than 12 months to reach some kind of conclusion and resolution.
The Bill’s provision on accountability to Parliament and the public is an important change. It is a small one, but it will make a great difference to the ombudsman’s work and people’s confidence in it. It is also important to note that the ombudsman welcomes the call for greater transparency and openness about its performance.
Perhaps it is worth reflecting at this point on the fact that, since the ombudsman was established in 1967 to help Parliament to hold public services to account, there have been many reforms and changes. To its credit, it has embarked on a modernisation programme since 2012, and its statutory annual report to Parliament, “A voice for change”, explains how, as a result of the first phase of that programme, it concluded six times more investigations in 2013-14 than in the previous year, completed 99% of cases within 12 months and halved the average length of investigations from 432 days to 223 days. That represents solid progress, and I congratulate the ombudsman’s staff on the work that they have done.
The reality is that there is still progress to be made, however, and I wish to press the Minister on two points, to which I hope she will be able to respond. On 31 March 2013, the ombudsman had a maximum of 30 NHS complaints that it had not concluded within 12 months. No figure was given in the annual report for 2013-14. Can the Minister share with us today, or perhaps in a letter, why there has been a delay in releasing the figure? I believe that we agree about the Bill, but I would like to hear why she thinks it will work.
I note that some have called for much wider changes to the ombudsman service—we have had an extensive debate about it over the past two and a half hours. I draw Members’ attention to the recommendations in the Public Administration Committee’s recent report, “Time for a People’s Ombudsman Service”, which included proposals for different scrutiny arrangements that would make it easier for Parliament to hold public services to account. The Cabinet Office has given a commitment to the Committee that it will carry out a review of the ombudsman landscape, and the Opposition look forward to the outcome. With the indulgence of the House, perhaps the Minister will update us on whether that review has begun and what its scope is or will be, because that will shape the way in which the Bill is introduced.
I understand that the ombudsman has now launched the second phase of its modernisation programme, focusing on what people can expect from investigations and examining the quality of its service. I understand that it will consult NHS users and patients’ groups on the development of a new service charter, which is very welcome.
The age of deference has passed, and citizens expect high standards of service, real choices and accountability from their public services. The digital revolution allows the citizen to be more informed about their medical conditions and treatments than any other generation in history. The NHS in England treats 1 million people every 36 hours, and when things go wrong, as they inevitably will in an organisation of the size and complexity of the NHS, citizens have the right to honesty, transparency and swift redress. The Bill takes some important steps in the right direction. I look forward to its being passed.
Jane Ellison
We have had a thoughtful and productive debate, and I congratulate right hon. and hon. Members from all parties on their contributions. The shadow Minister made a thoughtful contribution about some of the wider issues relating to the ombudsman’s work and some of the inquiries and reviews that are ongoing. I hope that she and the House will forgive me if I do not respond immediately to those points, as they are not directly germane to the Bill. I will look to get a response to her questions to her after the debate, if that is acceptable to her.
I put on record my appreciation of the consensual way in which all parties have approached the Bill. As the House is aware, very few private Members’ Bills make it beyond Second Reading, so it has been good to see the commitment throughout the House to improving how the health service ombudsman handles complaints.
I hope that we will be able to get the Bill on the statute book because the Government fully support it. It fits within the transparency revolution that the Secretary of State for Health has driven, and it is an important Bill that will improve the accountability of the health service commissioner for England to complainants and Parliament.
Obviously we would not be here without the sterling efforts of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), whom I commend for his work to improve the experience of people who make a complaint about the NHS. I also commend my right hon. Friend the Member for North East Hampshire (Mr Arbuthnot) and other Members who raised on Report some of the issues underlying good practice in complaints handling. That has enriched the debate on the Bill. I am sure that, when the ombudsman and her team read the transcript, they will find it helpful to see that Parliament has given some time and thought to how they go about their business. I am sure they will also note with pleasure the positive comments that have been made, particularly about Dame Julie Mellor’s efforts to improve and enhance the work of her organisation.
I thank my officials in the Department of Health, the Clerks of the House and everyone who has contributed to the Bill. I reiterate that I commend my right hon. Friend the Member for Haltemprice and Howden for bringing this short but important Bill to the House. There will be moments when all of us have constituents whose burden at a moment of vulnerability and distress is reduced by the measures in it. I reiterate the Government’s full support for it.
Question put and agreed to.
Bill accordingly read the Third time and passed.
House of Lords (Expulsion and Suspension) Bill [Lords]
(9 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
13:16 - The House divided: - Ayes: 2 / Noes: 34 - Question accordingly negatived.
14:18 - The House divided: - Ayes: 1 / Noes: 32 - The Deputy Speaker declared that the Question was not decided because fewer than 40 Members had taken part in the Division, and the business under consideration stood over until the next sitting of the House (Standing Order No. 41).
Sir Tony Baldry (Banbury) (Con)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Dawn Primarolo)
With this it will be convenient to discuss the following:
New clause 2—Bill of Rights—
“Nothing in this Act shall be constructed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.”
This clause, modelled on section 1 of the Parliamentary Standards Act 2009, preserves the exclusive cognisance of the House of Lords over its own proceedings and membership.
New clause 3—Code of conduct—
‘(1) Standing Orders of the House of Lords may provide for the adoption of a code of conduct.
(2) A resolution passed by virtue of section 1(4) must include a reference to the relevant provision of any code of conduct which the House of Lords may have adopted and which has not been superseded by a subsequent decision of the House.”
This clause allows the House of Lords to adopt a code of conduct and also requires the application of penalties under this Bill to be linked to that code, if there is one.
Amendment 18, in clause 1, page 1, line 6, at end insert
“on the ground of that member’s conduct as set out in the resolution”.
Sir Tony Baldry
New clauses 1 and 2 stand in my name, and new clause 3 and amendment 18 are in the name of my hon. Friend the Member for Christchurch (Mr Chope).
This important Bill enables a lacuna to be filled in the procedures of the House of Lords, and to enable the House of Lords—where appropriate—to suspend or expel Members. The House of Lords currently has powers to suspend Members, but rather curiously it can do so only for the remainder of a Parliament. Therefore, if a Member of the House of Lords were to be suspended today, they could effectively be suspended only until 30 March, or whenever this Parliament is dissolved. If, on the other hand, the House of Lords decided to suspend a Member early in the next Parliament, they would be suspended for the duration of that Parliament. That is curious and it is difficult to justify why the length of suspension should vary. The House of Lords wanted to clarify that position as well as the position on expulsions. The measure had wide support in the other place, and I am sure it will win support throughout this House.
This is a somewhat thin House today. I speak not personally about my bodily weight—although, as my wife points out to me, I have a body image problem because I do not see my body as everybody else sees it—but it is a thin House because there are very few of us here. That, I think, is a consequence of five-year fixed-term Parliaments, because for the last few months, although the House has been sitting, large numbers of colleagues understandably want to be in their constituencies or elsewhere campaigning.
Mr David Nuttall (Bury North) (Con)
Given that in the last Session the House of Lords Reform Bill passed through this House and the other place, does my right hon. Friend know why, if these matters are now considered so important, their lordships did not see fit to amend that Bill last year to include these proposals?
Sir Tony Baldry
I cannot speak for what happened in the House of Lords—clearly these measures were not included in that Bill or we would not be debating them today, and I will come on to that point.
As I was saying, we may be a rather thin House, but we are also an experienced House, and looking at the right hon. and hon. Members present, I think we have well over a century of service between us. I feel a bit like one of those black and white western films, where one is at Fort Laramie and most of the people have been sent out in the middle of night to get to safety, but a few old soldiers are left manning the battlements of the business. I feel a little as though we are in that position today. My right hon. Friends the Members for North East Hampshire (Mr Arbuthnot) and for North West Hampshire (Sir George Young), myself and others, are the old soldiers who have been left behind while others are out campaigning, because we are considered to be totally expendable.
Sadiq Khan (Tooting) (Lab)
For the record, will the right hon. Gentleman confirm that I am a young soldier rather than an old soldier, and that I am not expendable?
Sir Tony Baldry
The right hon. Gentleman is a welcome young soldier to the proceedings, although he is almost a solitary soldier on his side of the House. I suppose it is a measure of the Opposition’s desperation that not one of them could afford to be in the House of Commons today because they all felt it necessary to be out campaigning somewhere.
Sir Tony Baldry
What I love about the right hon. Gentleman is his innate modesty.
Mr James Arbuthnot (North East Hampshire) (Con)
While we are talking about a Bill of Rights from a few centuries ago, let me check that the wording of new clause 2 is meant to be as printed in the Order Paper, namely that nothing in the Act shall be “constructed” by any court as affecting the Bill of Rights 1689. Should that read “construed”, or is it a special language from 1689?
Sir Tony Baldry
Subject to any advice that the Clerk gives you, Madam Deputy Speaker, I think we all took that as meaning construed, but we know that for these purposes construed and constructed probably mean pretty much the same thing and I do not think anything really turns on it. I am grateful to my right hon. Friend for drawing the House’s attention to that point.
What is important is what commands public confidence. Over the years the issue of parliamentary privilege has detained Committees and the House from time to time, because it has always been recognised that Parliament and parliamentarians need certain rights or immunities to ensure that we can operate freely and independently. In 1999 the Joint Committee on Parliamentary Privilege observed:
“Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances, great and small, can be aired, regardless of the power or wealth of those criticised. In order to carry out these public duties without fear or favour, Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims.”
Parliament must therefore be free from intervention by the courts, according to the Joint Committee on Parliamentary Privilege.
As we will see, however, at certain times the courts have become involved in the workings of Parliament, and we must consider how we respond to that. It is normal for a democratic state to protect parliamentary independence. Parliamentary immunity has developed throughout the world, not as a constraint on the rights of the citizen but as a fundamental liberty. Parliamentary privilege is not a privilege for parliamentarians, but the privilege of our constituents. Privilege refers to the range of freedoms and protections each House of Parliament needs to function effectively. In brief, it comprises the right of each House to control its own proceedings and precincts, and the right of those participating in parliamentary proceedings, whether or not they are Members, to speak freely without fear of legal liability or other reprisal.
Over time, however, we have seen the development of some grey areas. The Bill was introduced by Baroness Hayman as a private Member’s Bill in the House of Lords. It passed all its stages in the Lords and then came to this House. Under the procedures of this House, the Bill was, very appropriately, taken up by my right hon. Friend the Member for North West Hampshire, who is a former Leader of the House. The Bill had a rather unusual Second Reading in that it was conducted upstairs in Committee, so this is the first time there has been an opportunity in the Chamber to debate the Bill. The Bill touches on who is summonsed to Parliament and who can be a Member of Parliament, so it is right and appropriate that this Chamber should give it reasonable consideration. I was very grateful to the House for providing half a day for consideration on when women bishops might enter the House of Lords. If we are willing to give half a day to whether women diocesan bishops could be given precedence over others to take their place in the House of Lords, it seems appropriate to give equal time to considering other measures relating to the House of Lords, such as those on suspension and expulsion.
My right hon. Friend the Member for North West Hampshire, in a speech to the Conservative spring forum in 2010, observed that there is a grey area on whether parliamentary privilege precluded criminal prosecution of Members of this House accused of false accounting relating to parliamentary expenses. There were suggestions that there should be clear legislative proposals to ensure that privilege cannot be abused by Members of Parliament to evade justice. This has been an issue of some ambiguity for some time. The 1999 Joint Committee on Parliamentary Privilege, chaired by Lord Nicholls of Birkenhead, said it was right for Parliament to regulate its own affairs and that Members needed to be able to speak freely. However, the Committee proposed clarification of the scope of various privileges and in some cases greater powers for the courts to examine proceedings in Parliament. It recommended that all the changes proposed in its report should be embodied in a new and comprehensive parliamentary privileges Act, codifying parliamentary privilege as a whole. Unless I have missed something, I do not think that Parliament ever got around to carrying out the recommendations of the Joint Committee that there should be a comprehensive parliamentary privilege Act codifying parliamentary privilege as a whole.
We have the notion that Parliament controls matters and that both Houses of Parliament control their own precincts and procedures, but that is now sometimes more of a sentiment than an actuality. In 2002, in the case of A v. the United Kingdom, the European Court of Human Rights held that the absolute freedom of speech in Parliament was proportionate and did not violate the European convention on human rights, although—this is an important point—the Court also asserted its jurisdiction over national Parliaments’ privileges. The Court held that a rule of parliamentary immunity
“cannot in principle be regarded as imposing a disproportionate restriction on the right of access to the courts, as embodied in Article 6”
of the European convention on human rights. Moreover, the Court held that the creation of exceptions to that immunity, the application of which depended on the facts of any particular case, would seriously undermine the legitimate aims pursued.
Parliamentary privilege is clearly a living concept. It still serves to protect Parliament and all those involved in its proceedings. Article IX of the Bill of Rights says:
“the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”
If that is the case, Parliament needs either to assert that right and say that this is a matter entirely for the cognisance of the House of Lords, or to say that there may be good reasons for others—the courts—to have some involvement and interest in what is taking place. Parliament may well come to the view that the public no longer have confidence in the ability of Parliament, or its individual Houses, to manage their own affairs. That is why, in this place, we agreed by Act of Parliament to have an Independent Parliamentary Standards Authority. I think it was felt by the House of Commons that when it came to commanding public confidence, it was far better to hand over all matters relating to parliamentary expenses to an independent statutory body than to have continuing supervision by the House of Commons itself. I think, by and large, that has helped considerably in restoring public confidence in House of Commons expenses.
There is, therefore, a perfectly credible argument for a system in which, if it was felt that Members of either House had misbehaved so badly, there should be some judicial oversight of the process. One has to decide one way or the other: either we assert the established principle in the Bill of Rights that each House has cognisance over its own affairs, or we say that there may be some judicial oversight. The purpose of new clause 2 is to try to clarify that.
I will of course listen with interest to the explanation of my right hon. Friend the Member for North West Hampshire as to why the Bill is drafted as it is. It may well be that that explanation satisfies the whole House. I well know my right hon. Friend’s ability to explain Bills, because he and I once served together on a Committee considering a Bill to introduce leasehold reform. I remember him very elegantly one afternoon describing, with his hands and words, what a flying freehold and a flying leasehold look like, so I have absolutely no doubt that he will be able to explain to the House the exclusive cognisance of the House of Lords. If there is to be exclusive cognisance of the House of Lords, however, we have to be confident that that will work one way or the other.
Sadiq Khan
Just to reassure the right hon. Gentleman, is he aware of the comments made by Lord Brown of Eaton-under-Heywood, the Chair of the Sub-Committee on Lords’ Conduct? He must have been aware of these concerns. He said:
“I greatly welcome the Bill and the logical and highly desirable increments to the powers of the House that it would bring with it.”—[Official Report, House of Lords, 24 October 2014; Vol. 756, c. 930.]
He recognises that it will be the House that will have the additional powers, not anybody from outside the House.
Sir Tony Baldry
I take the right hon. Gentleman’s point. The Bill, as far as the House of Lords is concerned, is an enabling and clarifying Bill that the House of Lords intends will give it greater powers, but there is still an important ambiguity that needs to be clarified, and I will welcome the observations of my right hon. Friend the Member for North West Hampshire on that.
Mr Christopher Chope (Christchurch) (Con)
I thank my right hon. Friend the Member for Banbury (Sir Tony Baldry) for introducing his new clauses and emphasising the importance of natural justice.
New clause 3 and amendment 18 link in with the theme already established in our discussion of new clauses 1 and 2. The Bill essentially concerns the conduct of Members in the other place—the noble Lady Baroness Hayman on Report called it a disciplinary Bill—and it was in that context that I tabled my new clause and amendment. At the moment, there is a lacuna in the drafting: there is no linkage between the provisions in clause 1 on conduct and the House of Lords’ code of conduct. Subsection (1) reads:
“Standing Orders of the House…may make provision”
to
“expel…or…suspend a member…for the period specified in the resolution”.
Subsection (4) reads:
“A resolution passed by virtue of subsection (1) must state that, in the opinion of the House of Lords, the conduct giving rise to the resolution…occurred after the coming into force of this Act, or…occurred before the coming into force of this Act and was not public knowledge before that time.”
The clause does not, however, spell out what that conduct should amount to, and that is why new clause 3 would link the provision to breaches of the code of conduct of the other place:
“Standing Orders of the House of Lords may provide for the adoption of a code of conduct… A resolution passed by virtue of section 1(4) must include a reference to the relevant provision of any code of conduct which the House of Lords may have adopted and which has not been superseded by a subsequent decision of the House.”
Amendment 18 would insert at the end of line 6, page 1, clause 1, the words
“on the ground of that member’s conduct as set out in the resolution”.
Under my proposals, it would not be possible to use the extensive powers in the Bill other than in respect of breaches of the code of conduct in the other place.
It is important to put that safeguard in the Bill, given comments bandied around by Members of the other House. On Report, when discussing clause 2, the noble Lord Wallace of Saltaire—
Mr Chope
I am delighted to hear that he is one of my hon. Friend’s constituents. I am sure it is just as well he does not have the chance to vote for my hon. Friend.
The noble Lord Wallace of Saltaire said:
“I read the latest Code of Conduct again this morning, thinking that we need to be sure what we are on about”—
I think that is always wise advice. He continued:
“One of the issues that perhaps we need to discuss informally off the Floor is how far this measure is intended to refer only to conduct that is mentioned in the Code of Conduct or to egregious conduct of other sorts conducted by Members of this House. However, that is a question that we need not have in the Bill itself, but it is certainly a question that the Committee for Privileges and Conduct and others will need to consider at a later stage”.
I think this issue should be considered in the Bill. If we are to enable expulsion or suspension from the other place on the basis of breaches of conduct, we need to know whether the conduct needs to be linked in with the code of conduct under the Standing Orders or whether the provisions apply, as the noble Lord put it, to
“egregious conduct of other sorts conducted by Members of this House”.—[Official Report, House of Lords, 21 November 2015; Vol. 757, c. 650-51.]
In discussing these issues, people sometimes bandy about expressions such as “bringing the House of Lords or Parliament into disrepute”. Judgments about areas of conduct or behaviour can be extremely subjective. I hope that the promoter and indeed the Government, who have hitherto been slightly underwhelmed by the contents of the Bill, will accept that the wording needs to be much more precise than it is at present.
When the ill-fated 2012 legislation came before this House, it was withdrawn by the Government because of the threat of it being properly considered; they did not want it to be properly considered, so they decided that rather than have it considered without a guillotine, they would not have it considered at all. That Bill was withdrawn, but it made reference to suspension and expulsion on grounds of conduct, and it was linked with breaches of the House of Lords code of conduct. However, in this Bill, that has been dropped.
My hon. Friend the Member for Bury North (Mr Nuttall) inquired earlier why the provisions of this Bill were not included in the private Member’s Bill proposed by our hon. Friend the Member for North Warwickshire (Dan Byles). The answer is—it was given by our hon. Friend—that he did not want these provisions in his Bill because he thought they were far too controversial, and he wanted to get his Bill on the statute book, which he succeeded in achieving, before he retires from this House after one term in our Parliament. Rather than venture into an area of controversy, he decided to stick to the principles contained in his Bill, which enable expulsion on the ground that a person has been convicted and sentenced to a period of imprisonment in excess of one year, rather than go into this linkage with the code of conduct or conduct defined more widely, as it might be in due course by the noble Lord Wallace of Saltaire.
People are talking about bringing the House of Lords into disrepute, so in preparation for today’s debate I tried to establish how this could be viewed as analogous to the disciplinary processes in some firms where it is a disciplinary offence for an employee to bring the company for which the person works into disrepute. Case law in this area is fraught with difficulty. It is extremely difficult for an employer legally to control the actions of an employee outside their employment, and there is often little reason why an employer would wish to do so. However, the notion of an employee bringing the company into disrepute following actions in their personal life is one situation in which the parallel might occur.
Philip Davies
My hon. Friend makes a very good point. Would tax avoidance also be relevant? It has been a topical issue of late, and it could be that Members in the other place engage in activities that are within the law, but which a majority of their lordships might find distasteful. Does my hon. Friend think that someone who was abiding by the law could fall foul of the Bill’s provisions? We could end up in a very difficult situation, with people not being sure what they are or are not allowed to do.
Mr Chope
My hon. Friend makes a very good point. I fear that the sort of conduct to which he refers could be regarded as conduct that brought the House of Lords into disrepute and that the person accused of such conduct could be sanctioned under the terms of the Bill. The Bill refers to the Standing Orders of the other place—it does not even cover the code of conduct—and we know that their lordships are understandably jealous of their reputation and want to maintain it in the eyes of right-thinking members of the public. I suspect that a number of them would regard the sort of tax avoidance to which my hon. Friend referred as behaviour that redounded to the detriment of other Members of that place.
However, we are not talking about a firm of accountants. We are talking about a part of the legislature of our great nation, and if we are going to restrict people’s ability to participate in it, we need to do so on a clearly defined basis rather than resorting to the ad hoc pandering to public opinion of which I am afraid we have seen a great deal recently.
For example, a number of political parties—I shall not mention any cases that may have arisen quite recently—now take the view that the best thing for them to do is distance themselves from any Member who is accused of a certain type of conduct and whose membership of his party is taken away from him, because, although it may not have been established that that conduct is in any way illegal, it might be regarded as potentially embarrassing that the accusation has been made. Such Members are suspended, or the whip is withdrawn, which is exactly what happened to Lord Rennard.
It is clear that we are increasingly moving away from a system whereby we rely on the rule of law to a system whereby the dictates of public opinion determine the outcomes of cases. That is why I think that we need to be extremely careful before we introduce legislation that would give the other place significant scope to introduce its own house rules, which could deny those Members who have been appointed or are in the other House as a result of their election as hereditary peers the opportunity to participate in the legislative process and other proceedings of the other House.
Philip Davies
Would not Members of the other place be making decisions about who could or could not sit there while having no democratic legitimacy and, perhaps, having some dubious motives for making those decisions?
Mr Chope
My hon. Friend has made another good point. When we look beyond the immediate subject of the debate, we see that there is pressure to reduce the numbers in the other place because the Government have been increasing the number of appointments to such an extent that I have complained. Indeed, my House of Lords (Maximum Membership) Bill is on the Order Paper today, although it is, of course, being blocked by the Government. It would restrict the Government’s ability to increase inexorably the membership of the other place.
At present, because of the pressure of numbers, the House of Lords is creating what is almost a culture, aided and abetted by the current Lord Speaker, who has said that she will retire at a particular time in an attempt to set an example to others. The implication is that when they reach a particular age, they too should choose to retire. That is entirely outwith our constitution. However, if the Bill were passed, any Standing Orders passed by their lordships requiring Members not to stay on beyond the age of, for instance, 70 or 75, could mean that a Member who refused to give up their seat would be the subject of the sanctions specified in the Bill, namely expulsion or suspension.
Sir Tony Baldry
There is an issue that the House of Lords will have to address in its Standing Orders. If a Member of that House were seriously threatened with suspension or, particularly, expulsion, would he be able to avoid that simply by retiring, under the new provisions for retirement, thus avoiding any quasi-judicial investigation into his conduct?
Mr Chope
We have had exactly that problem with senior police officers. As soon as they are brought to book or accused of anything, they run for cover. They retire or resign, and are then able to keep their pensions. When we deal with the next group of amendments, we shall discuss the question of whether the Bill should apply to both expulsion and suspension. I think that there should be a distinction between them, but I will not anticipate that later discussion.
As is already clear from the short debate that we have had so far, this is an extremely complex matter, and the idea that it could become law without being properly thought out fills me with horror. The fact that most members of the general public will not be writing letters saying how outraged they are by the potential consequences of the Bill does not mean that we should not pay great attention to its implications, not least because it impinges on our constitution. At one stage during the current Parliament, the Government were taking the line that they did not want any more piecemeal reform of the other place, but they seem to have shifted their position a bit. Perhaps the Minister will explain a little more about the Government’s policy in a moment, but I think that, unless it is amended, what we have before us could be very dangerous to our democracy.
The Minister for Civil Society (Mr Rob Wilson)
My hon. Friend is making an important speech, but may I return him to his earlier comments about Lord Rennard, and to the point made by my hon. Friend the Member for Shipley (Philip Davies) about tax evasion? Is my hon. Friend suggesting that under those circumstances, if the legislation were enacted, it could lead to the expulsion of a peer? Surely the powers to suspend a peer already exist. This Bill focuses on expulsion, not suspension.
Mr Chope
Actually, having discussed the Bill with my right hon. Friend the Member for North West Hampshire (Sir George Young), my understanding is that the most important part is the part that deals with suspension, which enables the House of Lords to suspend a Member for a longer period than until the end of the Parliament. There are all sorts of anomalies. If a Member of the Lords chooses to misbehave at a late stage in a Parliament, they can be suspended for only a few weeks, whereas if they misbehave at the beginning of the Parliament, they can be suspended for up to five years. That is the part of the Bill with which I have sympathy. I am much less sympathetic when it comes to the issue of expulsion.
At present, there are very circumscribed rules relating to the ability of the other place to expel. They are the rules that we have in the House of Commons, applying to Members who have been convicted of an offence and sentenced to more than a year in prison. However, whether we are talking about expulsion or suspension, it needs to be dependent on bad conduct, and that is where there is a big gap in the Bill. It obviously enables people such as Lord Wallace to hope that in due course they can bring within the ambit of the Bill all sorts of egregious behaviour, some examples of which we have been discussing this morning.
I hope that my right hon. Friend the Member for North West Hampshire will respond to the concerns that I have addressed. In our earlier debate, we discussed the balance between delay and getting things right. I think it is important for us to get this Bill absolutely right, even if that means it is delayed for a few hours or days.
Mr Wilson
It is a pleasure to be here on a Friday. This is not something that I have often been able to do in the past. It is also a pleasure to be able to listen to some of the older generation sallying forth, as my right hon. Friend the Member for Banbury (Sir Tony Baldry) might have put it.
Sir Tony Baldry
For the older generation, sitting on Fridays is a regular occurrence. We are often here, Friday after Friday, as well as doing our constituency work. Indeed, I made my maiden speech on a Friday. As for the idea that being here on a Friday is somehow exceptional, for us it is part of our natural life, as were all-night sittings.
Mr Wilson
I meant that being here on a Friday was exceptional for me, not for my right hon. Friend. Perhaps I did not make my point clearly. It has been a pleasure to listen to him and to the others who have been making contributions today. It has been great to see some of the hon. Members who come here on a Friday in action. It has been a particular pleasure to hear my hon. Friends the Members for Christchurch (Mr Chope), for Shipley (Philip Davies) and for Bury North (Mr Nuttall), as I have heard much about these Friday sittings.
Mr Wilson
As my hon. Friend knows, this Bill is expressly limited to matters of conduct. That has been made clear in the Bill and throughout the debates in this House and the other place. The power of expulsion that the Bill confers on the other place is similar to the power that we already have in this House. This House has an inherent power to expel Members if it needs to, but the other place cannot do so because, without primary legislation, it cannot override the right of peers to receive a writ of summons. I hope that that deals with my hon. Friend’s point.
The Bill is also already explicitly limited to matters of conduct by subsection (4) of clause 1. It is certainly envisaged that a resolution to suspend or expel would only follow from a report from the Committee for Privileges and Conduct. Proceedings on the Bill in the Lords made it clear that any relevant breach would be linked to the existing code of conduct. The Government therefore do not support the new clauses or amendment 18.
Sir George Young (North West Hampshire) (Con)
I should like to begin by thanking all my hon. and right hon. Friends who have taken part in the debate for their interest in the Bill. I am grateful to my right hon. Friend the Member for Banbury (Sir Tony Baldry) for making it clear at the beginning of his remarks that he supported the principle behind the Bill, and I am grateful to the Minister for confirming that the Bill conforms to the requirements of the European convention on human rights. I am also grateful to my hon. Friend the Member for Christchurch (Mr Chope), who, as always, has raised important issues that will need addressing as we go through the legislation.
I should like to put the new clauses and amendments, and indeed the Bill, into perspective. As my right hon. Friend the Member for Banbury said, the Bill basically does two things. It enables a suspension to go beyond the lifetime of the current Parliament, and it enables the House of Lords to expel a Member. It does not change anything else. It does not change the code of conduct or the environment in which the code is administered, and it does not change the interface between the House of Lords and the courts in regard to issues such as exclusive cognisance. So, to some extent, the broader issues that he has raised have already been dealt with in the context of the original introduction of the code of conduct and of how the system works.
The Bill has no direct impact on this House. My hon. Friend the Member for Christchurch said that clauses had been dropped because they were controversial, but there has been no sign so far—certainly in the upper House—of any controversy. Indeed, there was an absence of controversy as the Bill went through. The upper House sees it as an important building block in restoring the reputation of that House, by giving it clear powers to expel a Member whose behaviour is unacceptable. There will be an indirect benefit for this House, in that anything that restores confidence in Parliament is good for both Houses.
I turn now to the new clauses and the amendment. I understand exactly why my right hon. Friend the Member for Banbury tabled new clause 1. I understand that in the House of Lords, technically, it is not the Lord Speaker who lays such documents. That is in fact done by the Committee for Privileges and Conduct, which lays on the Table the reports of any investigation into the conduct of a Member of the House of Lords. The Committee is already required to do that by Standing Order No. 68 of the House of Lords, which states:
“Reports from Select Committees shall be laid on the Table and ordered to be printed. Notice shall be given on the Order Paper of the day on which the report is to be considered .”
I therefore hope that my right hon. Friend will agree that we do not need any changes to the legislation or to Standing Orders to enable such reports to be laid.
My right hon. Friend made an important point about natural justice. If he looks at the House of Lords code of conduct, he will see that paragraph 19 states:
“In investigating and adjudicating allegations of non-compliance with this Code, the Commissioner, the Sub-Committee on Lords’ Conduct and the Committee for Privileges and Conduct shall act in accordance with the principles of natural justice and fairness.”
Also, if he looks at those who sit on the Committee, he will see that it is required, by Standing Order No. 77, to include two former holders of high judicial office. I therefore think that we can be confident that the fate that befell poor Lord Lovat will not befall any errant peer; no one will be subjected to a kangaroo court. We can be confident that the principles of natural justice will be upheld. The Standing Order also states:
“A Committee for Privileges and Conduct shall be appointed at the beginning of every session; sixteen Lords shall be named of the Committee, of whom two shall be former holders of high judicial office.”
My right hon. Friend went on to deal with the issues of privilege, and he referred to the Parliamentary Standards Act 2009 and an amendment inserted in the Bill that became that Act by the House of Lords. That Bill was a very different animal from this one. The Bill then being considered contained provisions that seriously risked breaching privilege. He may well remember the decisive intervention of the then Clerk of the House, Malcolm Jack, who produced a report during the passage of the Bill expressing the concerns in this House. That Bill explicitly required the production of a code of conduct relating to financial instruments and it set out that it must be laid before the House of Commons. The Bill detailed at some length the procedure of any investigation into a breach of that code and established a new offence of providing false or misleading information about allowance claims.
The short Bill before us is a very different animal and does none of those things. Unlike with the 2009 Act, the Bill has raised no concerns from the Clerks of the Parliaments, nor has anyone raised any concern about its current drafting risking parliamentary privilege. As the Minister has just said, matters of parliamentary privilege do not need to be expressly stated in legislation in order not to be justiciable.
Let me now address the measures proposed by my hon. Friend the Member for Christchurch on the code of conduct. A code of conduct is already produced, and it is published by the Committee for Privileges and Conduct. That already takes place under Standing Order No. 77. All reports from that Committee that have recommended that a sanction should be applied have included a very clear reference to the relevant provision of the code that was breached in each instance—that is also what happens in this House. The most recent investigation gives us an example of how this is done. The Committee’s report summarises and includes the findings of the House of Lords Commissioner for Standards and the Sub-Committee on Lords’ Conduct, all of which include specific reference to which paragraphs of the code of conduct the Member was alleged to have broken. The most recent report states:
“The complaint alleged that Lord Redesdale breached the Code of Conduct by not registering certain interests in the Register of Lords’ Interests (in breach of paragraph 10(a) of the Code) and by registering certain other interests more than one month after those interests came about (in breach of paragraph 13).”
Other reports on the conduct of noble peers, such as the one on the conduct of Lord Hanningfield, contain explicit reference to which particular breach of the code has taken place. My understanding is that the case of Lord Rennard was not referred because the code specifically says:
“Matters not falling within the Commissioner’s remit include…Members’ non-parliamentary activities.”
That is not wholly dissimilar to the rules that apply to us in this House and it explains why that case did not go before the relevant Committees.
Mr Chope
With the greatest respect, my right hon. Friend has not addressed the issue raised by Lord Wallace of Saltaire, who expressly contemplated that this Bill was going to go wider than the existing code of conduct. The purport of my new clause 3 is to ensure that it cannot do that. In so far as it is a belt and braces, why will my right hon. Friend not accept my new clause?
Sir George Young
If my hon. Friend looks at the Bill, he will see that clause 1(4) specifically refers to “conduct”. It talks about:
“A resolution passed by virtue of subsection (1) must state that, in the opinion of the House of Lords, the conduct giving rise to the resolution”.
I know that he wants us to be more specific about the sort of conduct, but if one goes down that road, there is a real risk of breaching parliamentary privilege. We may run the risk that if we are too specific in the legislation, the courts may then have reason to look behind the conduct and then the exclusive cognisance that we have at the moment might be prejudiced. That is why the Bill is specifically drafted in order to avoid prejudicing parliamentary privilege.
Mr Chope
I imagine that my right hon. Friend was much associated with the drafting of the 2012 Bill. It was a Government Bill and it made a specific link with breaches of the code of conduct. Why can we not make that link? Clause 1(4) currently refers only to the “conduct giving rise”; it does not say that that conduct has to be conduct that is in breach of the House of Lords code of conduct.
Sir George Young
Because the moment one puts the code of conduct into legislation, one runs the risk of the courts having another look at it. I am not sure, but the Joint Committee that looked at the Bill the Government published may have recommended that that specific provision be removed—I stand to be corrected on that. The key thing is that the Bill before us does not go beyond the general reference in clause 1(4) to “conduct”, for the very reasons that I have given. I am sure that my hon. Friend, who is a member of the Standards Committee and the Privileges Committee, would not want to run the risk of the courts second-guessing the decisions of the Select Committees on which he serves. Given those assurances, I hope that, on reflection, my colleagues will not press their proposals to a Division.
Sir Tony Baldry
I am very grateful to both the Minister and my right hon. Friend the Member for North West Hampshire (Sir George Young) for their remarks. I had not realised that this was the Minister’s first outing on a Friday. He gave a clear explanation from the Dispatch Box of the true position, and if he had been given more Friday outings we would probably have got through business rather more quickly. In the next Parliament I hope he will have many more such outings at the Government Dispatch Box. I am extremely grateful to my right hon. Friend for his lucid explanation, which met my concerns on both natural justice and cognisance. On the basis of the explanations given, I beg to ask leave to withdraw the clause.
Mr Deputy Speaker (Mr Lindsay Hoyle)
The new clause will have to be moved formally.
Clause, by leave, withdrawn.
New Clause 3
Code of conduct
“(1) Standing Orders of the House of Lords may provide for the adoption of a code of conduct.
(2) A resolution passed by virtue of section 1(4) must include a reference to the relevant provision of any code of conduct which the House of Lords may have adopted and which has not been superseded by a subsequent decision of the House.”— (Mr Chope.)
This Clause allows the House of Lords to adopt a code of conduct and also requires the application of penalties under this Bill to be linked to that code, if there is one.
Brought up, and read the First time.
Question put, That the clause be read a Second time:—
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 2, page 1, line 7, leave out subsection (2).
Amendment 7, page 1, line 17, at beginning insert
“in relation either to an expulsion or to a suspension”.
This is linked to the amendment below which prevents retrospective judgement of behaviour leading to a final expulsion of a member of the House of Lords.
Amendment 6, page 1, line 17, after “Act”, insert
“and any Standing Orders made under subsection (1)”.
Amendment 19, page 1, line 17, after “Act” insert
“and any Standing Orders made under this section”.
Amendment 8, page 1, line 18, leave out paragraph (b).
This removes all reference to previous conduct that was not public knowledge.
Amendment 9, page 1, line 18, at beginning insert
“in relation only to a suspension”.
This removes the power of expulsion in respect of previous conduct that was not public knowledge.
Amendment 10, page 1, line 18, leave out from “Act” to end of line 19 and insert
“but since 1 January 2015”.
This limits the application of the Bill’s sanctions to previous conduct that was not public knowledge to just the current year.
Amendment 11, page 1, line 18, leave out from “Act” to end of line 19 and insert
“but since 1 January 2000”.
This limits the application of the Bill’s sanctions to previous conduct that was not public knowledge in the past 15 years only.
Amendment 12, page 1, line 18, leave out from “Act” to end of line 19 and insert
“but since 1 January 1985”.
This limits the application of the Bill’s sanctions to previous conduct that was not public knowledge in the past 30 years only.
Amendment 13, page 1, line 19, after “knowledge”, insert “in the United Kingdom”.
This limits the scope of public knowledge of previous conduct to what was not known in this country.
Amendment 14, page 1, line 19, at end insert—
‘(4A) A resolution under subsection 4(b) may not relate to expulsion”.
This is an alternative approach to removing the power of expulsion in respect of previous conduct that was not public knowledge.
Amendment 15, page 1, line 19, at end insert—
“(4A) Standing Orders of the House of Lords set out guidance on what constitutes public knowledge under subsection 4(b)”.
This allows for some certainty as to what might constitute public knowledge of previous conduct.
Amendment 20, page 1, line 19, at end add—
‘(5) nothing in this section shall authorise the expulsion or suspension of members of the House of Lords on the grounds of age, health or length of service”
Amendment 3, in clause 2, page 2, line 2, leave out “Expulsion and”.
Amendment 4, page 2, line 4, leave out clause 3.
Amendment 5, in clause 4, page 2, line 9, leave out “Expulsion and”.
Amendment 16, in the title, line 1, leave out “expel or”.
Mr Chope
Effectively, amendment 1 seeks to remove from the Bill any reference to the expulsion of Members of the House of Lords, which means that the Bill would relate only to their suspension. The reason why I wish to circumscribe the Bill in that way is that the main point of the Bill is to make the House of Lords’ powers relating to Members’ suspension more consistent. On that, I agree with my right hon. Friend the Member for North West Hampshire (Sir George Young). Where I disagree with him is over the use of the expulsion power.
When this Bill was originally put forward, it was said to be very minor and technical, but as one of their lordships said, the expulsion power was certainly not about routine housekeeping. The power to expel Members from the other place is a fundamental interference in the constitutional arrangements of our country; people are appointed to the other House for life, or they are elected as part of the cohort of elected peers. To expel such a person is an extreme measure.
Following the House of Lords Reform (No.2) Bill, which was introduced by my hon. Friend the Member for North Warwickshire (Dan Byles) and passed into law, the House of Lords and this House effectively have the same powers of expulsion. That includes ensuring that anyone who is convicted of an offence that results in imprisonment for more than one year is expelled. In this House, we have not expelled anyone for a very long time. A number of people, following critical newspaper reports, have chosen not to stand again, or even in extremis to resign their seat, but expulsion is a draconian sanction. Introducing it in this Bill is unnecessary; it is over-egging the pudding. That is why I hope that my right hon. Friend the Member for North West Hampshire will accept my amendment. Essentially, all the amendments in the group deal with the same issue, which is the conduct that gives rise to potential expulsion from the House.
Amendments 2, 7, 6, 19, 8, 9 and the others are worth considering because they tighten up the Bill and bring it more into line with what would be regarded as fair and reasonable. Rather than spending a lot of time going through them, I would prefer to see whether we can persuade my right hon. Friend, the promoter of this Bill, to drop the expulsion power. As was said on Second Reading and Report in the other place, this is a power that the Lords hope that they will never have to use, but the danger is that if it is available and can be used in relation to a wide range of conduct, people might be expelled from the Lords in circumstances in which they would not be expelled from this House.
Let us consider the interaction between this Bill and the recall Bill. The recall Bill gives electors the power to vote when a Member’s conduct falls short of what is expected but would not give rise to a sentence of imprisonment of more than one year. If we are to link in with that, it would be best to do away with the expulsion provisions and rely on the suspension provisions instead. Under the suspension powers in this Bill, the other place would be able to suspend Members for five years or more. If a Member was suspended for that length of time and felt that justice had been done, they might well choose to resign. That is a different issue, but given the constitutional implications, it would be a step too far to give the other House the power to override our constitution by expelling somebody who has been appointed a peer of the realm for life, or an elected hereditary peer. If we want to go down that route, we should not do so on a Friday through a private Member’s Bill.
As with so many powers that have been taken, people say that they will never have to use these powers. We were told, when certain legislation was originally introduced, that it would be used only to proceed against terrorists, but as the years went by we found that the rules became rather different. People forget the basis on which the law was introduced. The lack of safeguards in this Bill about the conduct that would give rise to expulsion means that it would be much cleaner to remove references to expulsion from it. Some of my amendments would therefore ensure that the Bill was called not the House of Lords (Expulsion and Suspension) Bill, but the House of Lords (Suspension) Bill.
Sir Tony Baldry
I have a number of amendments in this group, but before I come to them, as they deal mostly with suspension, may I comment on the observations made by my hon. Friend the Member for Christchurch (Mr Chope) about expulsion? There is the question of consistency. The House has already agreed, through the previous group of amendments, that so far as is possible the House of Lords should have cognisance of its own matters. In other words, the House of Lords should control what happens in it. Unless there are compelling public policy reasons for doing so, it is difficult to argue, now that the House of Lords has agreed that it requires a power of expulsion, that this House should seek to frustrate the House of Lords’ having that power. As will have been clear to those of us who read the report of the Second Reading debate in Lords Hansard, there is cross-party support in that House for a power of expulsion.
Of course, it has always been possible to expel Members of the House of Lords; it is just that sometimes it has been done in slightly curious ways. I am a great supporter of some of the things done by Thomas Cromwell. I have always felt that what Ministers require is grip, and he certainly demonstrated grip. Poor Thomas Cromwell was arrested in June 1540, and a Bill of attainder passed in the House of Lords provided for his punishment without judicial trial. As we know, he was eventually put to death.
Lord Lovat, whom I mentioned earlier, was impeached for high treason in this House and found guilty by the House of Lords. Indeed, he suffered the ignominy of being hung, drawn and quartered—no one is suggesting, of course, that any Member of the House of Lords who might be expelled in future should suffer such a fate. In his judgment against Lord Lovat, the Lord High Steward said:
“The Commons found your Lordship to be one of the principal Conspirators, who contrived and carried on the late detestable Rebellion, to destroy our Religion and Liberties, and to subvert that Legal Settlement of the Crown in His Majesty, and His Royal Family, under which alone we can live Free and Happy.”
Other ways have been found of removing Members of the House of Lords. Impeachment was a procedure used by both Houses, under which all peers could be prosecuted and tried by the two Houses for any crime whatsoever. The House of Commons determined when an impeachment should be instituted. It related largely to high treason, but it could relate to other crimes and misdemeanours. There was a whole process involving the two Houses that could lead to the expulsion of a Member of the House of Lords.
Members of the House of Lords could also be expelled by a specific Act of Parliament. The last such Act was the Titles Deprivation Act 1917, which deprived enemy peers and princes of their British dignities and titles. Section 1(1) states:
“His Majesty may appoint a committee of His Privy Council, of which two members at least shall be members of the Judicial Committee, to enquire into and report the names of any persons enjoying any dignity or title as a peer or British prince who have, during the present war, borne arms against His Majesty or His Allies, or who have adhered to His Majesty’s enemies.”
No fewer than five members of the House of Lords were expelled under that Act, including three Royal Highnesses—His Royal Highness Leopold Charles, Duke of Albany; His Royal Highness Ernest Augustus, Duke of Cumberland; and His Royal Highness Ernest Augustus, Duke of Brunswick—and Viscount Taaffe of Corren. Therefore, on numerous occasions in the past it has been perfectly possible to expel Members of the House of Lords when that has been found necessary. We in this House have that power, and it seems perfectly sensible that the House of Lords should have it too.
Philip Davies
I shall be characteristically brief in my comments on this group of amendments. There is a great deal of merit in the amendments tabled by my hon. Friend the Member for Christchurch (Mr Chope) and my right hon. Friend the Member for Banbury (Sir Tony Baldry) in this group and they deserve closer scrutiny.
My hon. Friend the Member for Christchurch proposed amendment 1, and I have a great deal of sympathy for the points he made about expulsion. His amendment is made even more persuasive by the fact that his new clause 3 was defeated in the Division earlier. If the new clause had been accepted in the previous group of amendments, amendment 1 may not have been necessary. In the circumstances, I think it is necessary.
My hon. Friend has said that the punishment is draconian, which, of course, it is; it does not get much more draconian than expulsion from a House. I share his concern that the definitions of conduct that will lead to expulsion are not sufficiently tightly drawn. This is about whether we think that expulsion is an appropriate sanction and about the democratic accountability and legitimacy of Members of the House of Lords to make such decisions. My right hon. Friend the Member for Banbury touched on that issue when he moved new clause 1 and it is also addressed by amendment 1.
As my hon. Friend the Member for Christchurch has rightly said, the decisions about who is made a life peer are not made by Members of the House of Lords, because life peers are appointed. Given the circumstances, it should not necessarily be for the House of Lords to determine whether someone should continue to be a life peer. There may be some merit in asking the person who appointed them in the first place whether they would have appointed them had they known everything they know now and whether the appointment was justified at the time. I am not entirely sure that the House of Lords is the appropriate body to second-guess what the person who appointed them had in mind when making the appointment in the first place.
I fear that people who are appointed for good reason may find themselves on the wrong end of a decision, not because the person who appointed them or Members of this House, who have democratic legitimacy, think they should be expelled, but simply because their actions did not meet the taste of Members of the House of Lords at a particular moment in time.
I have always been a strong supporter of the House of Lords, as shown by my votes in this House. I have always shown myself to be a strong supporter of the status quo; as a Conservative, I rather like the status quo and enjoy voting for it. I have to accept that I shall never be subject to any of the decisions under discussion—there is no self-interest at play here. I am surrounded by people who are much more likely than me to be affected by future decisions in the House of Lords. However, my support for the House of Lords, and the good sense I always thought it previously exercised, has been tested somewhat by some of its recent decisions. I no longer have the same faith that Members of the other place will continue to make wise decisions.
One reason for that is that, instead of being composed of people of great experience and expertise, the other place seems to have become a haven for failed parliamentary candidates who could not get elected and have therefore been shoved into the other place. That has undermined not only its legitimacy but my confidence in its being able to make sensible decisions about the basis on which peers should be suspended or expelled. Therefore, it would be sensible to have as much rigour as possible so that peers cannot make decisions that we would find completely unacceptable. The Bill as drafted does not make the case that the House of Lords should have the power to expel a peer who was appointed by somebody else and without allowing anybody else to have any input into the decision. That is a dangerous game to play and I do not think that the House of Lords has the democratic legitimacy to be entrusted with that decision. That is why I think that amendment 1 is very sensible.
Largely for reasons of time, I do not intend to speak to all the amendments in this group, because that would be time-consuming, but I want briefly to touch on a few that have a great deal of merit. They are amendments 8, 14 and 15, tabled by my right hon. Friend the Member for Banbury, who spoke in some detail about whether the behaviour that may lead to expulsion or suspension happened before or after the person involved became a Member of the House of Lords.
Clause 1(4)(b) introduces retrospective legislation—we should always be wary of doing so, although it may well be justified—and that demands at least that there should be a debate and that somebody should make the case for it. The clause states that people can be expelled or suspended if the action in question
“occurred before the coming into force of this Act and was not public knowledge before that time.”
I know, or I think I know, what my right hon. Friend has in mind. I guess that some people would call it the Jimmy Savile issue, although he was obviously not a Member of the House of Lords. He has in mind actions committed by someone before they got a title and that were not known at the time; once that person has a title and those actions become public knowledge, they are deemed so outrageous that the only possible course of action is for the person to be expelled. I suspect that that is what my right hon. Friend has in mind, and many people in the country would support that on the basis of such an extreme example.
My concern is that the provision is not limited simply to such extreme actions. There are shades of grey in all such areas, and I fear that its retrospective nature may come back to penalise people who did something that was not unlawful at the time. Clearly, the actions of Jimmy Savile were not only completely unacceptable but unlawful, but my concern is that the provision may be used against people who have done something that was not unlawful and may not even have been unacceptable at the time, but has become unacceptable with the passage of time. We all know that what the public will tolerate moves on over time: things that were seen as perfectly reasonable 100 years ago are now quite rightly seen as completely unacceptable. As things move on with time, it may well be that people get caught out by actions that were once seen as reasonable but are no longer seen as such.
Allowing the House of Lords to expel people on that basis is very dangerous territory to enter. In effect, it would lead not to the rule of law, which my hon. Friend the Member for Christchurch quite rightly advocated, but to the law of the lynch mob. The Bill might give rise to the application of the law of the lynch mob in such circumstances.
My right hon. Friend the Member for Banbury is quite right to seek to leave out any reference to conduct that happened before the Act comes into force and was not public knowledge before that time in relation to expulsion: people could not be expelled for such actions, although they could be suspended for them. That is probably a very happy compromise. My hon. Friend the Member for Christchurch said that it would be draconian to expel somebody. I think it would be draconian to do so on the basis of actions that are no longer acceptable but were acceptable when they took place.
Mr Chope
We have yet to hear my right hon. Friend the Member for North West Hampshire (Sir George Young) respond to the debate, but my amendment 20 provides that
“nothing in this section shall authorise the expulsion or suspension of members of the House of Lords on the grounds of age, health or length of service”.
Does my hon. Friend agree that that safeguard should be the bare minimum?
Philip Davies
My hon. Friend is right. He anticipates my remarks, because amendment 20 is one I want to comment on, but I have not quite got to it yet. If he will show his customary patience, I will comment on it, but he is absolutely right.
I commend my right hon. Friend the Member for Banbury for amendment 15, which seeks to remove some of the uncertainty that will be introduced by the Bill. He is forensic when he looks through Bills and he has hit upon a good point. What constitutes public knowledge in relation to the Bill? All sorts of things are out there in the public domain somewhere, particularly in this day and age, with the internet and all the things one can find on Google. However, what is out there on some obscure blog or website might not be widespread knowledge.
When does something become public knowledge? Is it when it is out there somewhere and someone can point to a blog that was published somewhere or other? Could somebody use that as a defence and say, “Well, actually, it was public knowledge. It was on an obscure blog, which barely anybody reads, 25 years ago”? Alternatively, does it become public knowledge when it is much more widespread than that—perhaps when it is in the mainstream media? How can anybody be expected to know everything about everybody that may be out there in the public domain? Amendment 15 would be helpful because it would remove some of that uncertainty.
I do not know whether this is the intention of my right hon. Friend the Member for North West Hampshire (Sir George Young), but I suspect that the phrase
“was not public knowledge before that time”
might well be used by people as an escape route. The purpose might be to deal with what might be called the Jimmy Savile issue, but people like Jimmy Savile might not even be captured by the Bill, because it could be argued that accusations and revelations were out there and were public knowledge beforehand, even though they might not have been acted on. It is therefore not entirely clear whether the Bill, as currently framed, will even catch out the people it seeks to catch out.
Mr Chope
My hon. Friend refers to the Jimmy Savile precedent. Of course, if Jimmy Savile had been alive when the allegations came to light, he would undoubtedly have been prosecuted and sentenced to a period of imprisonment in excess of one year. I am therefore not sure that thinking about Jimmy Savile is as appropriate as thinking about people who, historically, have committed much less serious forms of what might be regarded as bad behaviour.
Philip Davies
My hon. Friend is right. He shows why the Bill is unnecessary and perhaps dangerous. He returns me to my initial fear, which is that people will be expelled for doing things that do not warrant expulsion, just because the tide of public opinion has gone in a different direction.
In an intervention, I mentioned tax avoidance. Somebody might have taken part in activities that were perfectly legal at the time and, in fact, seen as acceptable behaviour. Their actions might not have attracted any controversy at all at the time but, as public opinion changes, they might subsequently be seen as unacceptable. The person will be judged on that basis and may well be suspended or expelled from the House of Lords not because they did anything illegal or anything that was seen as unacceptable at the time, but because they did something that had become unacceptable. I worry that that is the dangerous route we are going down with the Bill. I predict that we will be in that situation at some point if the Bill is passed in its current form, so amendments 8, 14 and 15 are important safeguards that I hope my right hon. Friend the Member for North West Hampshire will consider.
I promised to touch on amendment 20, tabled by my hon. Friend the Member for Christchurch (Mr Chope), and I do not intend to break that promise. Because he was being even more brief than normal, he did not expand on it in any detail. It states that “nothing in this section”—clause 1—
“shall authorise the expulsion or suspension of members of the House of Lords on the grounds of age, health or length of service”.
I would like to think that all Members agree with my hon. Friend’s sentiment that people should not be expelled or suspended on that basis. He is right to be alert to the fact that if we do not tightly define the rules under which people can be expelled or suspended, we will open up the possibility, whether or not it is intended or likely, of people using the Bill as a Trojan horse to pursue a different agenda from the one that Members currently envisage.
My right hon. Friend the Member for North West Hampshire is a very reasonable man, and I am sure that he would not countenance anybody being expelled or suspended on the grounds of age, health or length of service. I am absolutely sure that that is nowhere near his mind. However, the point is not what is in somebody’s mind now, even the mind of the promoter of the Bill; it is how the Bill could be used at some future date if we do not define the rules tightly.
It may well be that because, as my hon. Friend the Member for Christchurch said, the size of the House of Lords has become completely ridiculous, people will look for an easy way to reduce the numbers. Of course, one of the easiest ways of reducing the numbers at a stroke would be to say, “Anybody above a certain age—you’re out. We’re going to take a particular point in time, draw a line, and if you’re on the wrong side of it, you’re out. If necessary, we’ll use these powers we’ve now got to enforce that new rule, because the public mood is that the House of Lords has got too big, and we’ve got to do something about it. This is the easiest way.” I really do fear that that could well happen. I am not saying that it will happen in the short term, but I can certainly see it happening in the medium term. People may pooh-pooh my hon. Friend’s amendment at the moment, scoff and say, “It’s absolutely ridiculous—that would never happen.” Well, let’s see.
Mr Peter Bone (Wellingborough) (Con)
My hon. Friend raises an interesting point. I suppose it could also be argued that if society moved forward and thought that legislatures had to have an equal balance of men and women, there could be a cull of male peers.
Philip Davies
My hon. Friend is absolutely right, and he highlights potential unintended consequences of the Bill—it could be a useful vehicle for people to use in future for purposes that were never envisaged. People can scoff and pooh-pooh the points that are being made, but who knows what decisions people might want to come to in the future and how they might use the Bill as a Trojan horse to pursue that agenda?
Amendment 20, tabled by my hon. Friend the Member for Christchurch, is certainly worth considering, and I hope that my right hon. Friend the Member for North West Hampshire will examine it and see that there is a legitimate fear about how the Bill could be used in future. Nobody is trying to scupper the Bill; people are trying to improve it and make it what we all intend it to be. I would like to think that my right hon. Friend will see that we are trying to deliver what he envisages the Bill doing. I have not heard him disagree with any of the points that have been made; he just seems to think that the things being described will not happen. That is where we might have a slight disagreement.
Steve Rotheram (Liverpool, Walton) (Lab)
At the start of his contribution, the hon. Gentleman said that he would be brief. Is he now straying into the uncertain waters of misleading the House?
Philip Davies
Looking at the clock, I have been speaking for 21 minutes, which, as a regular attender on a Friday, Mr Deputy Speaker, you will agree is brief—to be honest, I contend that that is more than brief, but we all have our own standards. I will not say too many nice things about the hon. Member for Liverpool, Walton (Steve Rotheram) as it might not go down well in Liverpool—
Mr Deputy Speaker
I think I can help. We need to get back to the amendment, not discuss the time as that is not a worry. I want to hear more about the amendment.
Philip Davies
As ever you are right, Mr Deputy Speaker, and I am sorry that I was led astray by the hon. Gentleman. It will not happen again.
The amendments deliver what we all want the Bill to do—that is how I view them—and I think they are useful in ensuring that we stick to what we think the Bill delivers, rather than go beyond that. I therefore hope that my right hon. Friend the Member for North West Hampshire will agree to them. The amendments are good, and should the opportunity arise I hope that my hon. Friend the Member for Christchurch will consider dividing the House on amendment 1. I would support him in that.
Mr Wilson
I thank my hon. Friend the Member for Shipley (Philip Davies) for being so brief.
The Government oppose the amendments, but I will speak briefly because I want to give my right hon. Friend the Member for North West Hampshire (Sir George Young) the opportunity to push the Bill through today. Amendments 1 to 5 and 16 remove all references to expulsion in the Bill, thereby removing from the entire Bill the power to expel a peer. The Government do not support removing the power to expel. That power would allow peers to deal with particularly serious misconduct and would bring the disciplinary powers of the House of Lords more in line with those of the House of Commons.
We expect the House of Lords to need to use such powers rarely, as has been the case in the House of Commons, which has not exercised its powers to expel since 1954. Nevertheless, we think it appropriate for both Houses to have such a power in order to deal effectively with those who bring the House into disrepute.
Sir George Young
I have listened carefully to the points made by my hon. Friends in this debate, and particularly to my hon. Friend the Member for Christchurch (Mr Chope), who in Committee made it clear that he had reservations about expulsion. I have gone back to the sponsors of the Bill and had discussions with the upper House. If anything, the power to expel is almost more important to them than the power to carry on suspension beyond a Parliament, and it would strike at the very heart of the Bill if that provision were removed.
We already have powers to expel if someone is sentenced to more than a year’s imprisonment, but during debates in the upper House it was made clear that many breaches of the code of conduct would not be a criminal offence but are of sufficient severity to justify a Member of the House being expelled. The House of Lords wants the powers that we have to expel a Member if their conduct is unacceptable. Expulsion is different to suspension, and it is important that the upper House should have the power to expel because its Members cannot be expelled by constituents in the way that we can be. We should therefore think hard before we deny the House of Lords a power that it wants and sees as essential in restoring confidence in the institution—a power that the House of Commons already has.
Sir George Young
My hon. Friend raised that point in Committee and I gave some examples that were used in the upper House such as repeated offences, for example, or a criminal sentence of less than a year. Members may take the view that that activity is unacceptable and that the Member should be expelled. Expulsion must be related to conduct, which is specifically mentioned in the Bill. Fears that someone might be expelled because they are a man or a woman simply do not arise because it must be related to their conduct.
My hon. Friend the Member for Shipley (Philip Davies) said that he was unhappy with some of the decisions made by the upper House. I understand that, but wonder whether his criticism applies to the decisions it has made when it has come to censoring or suspending its Members. My view is that that has been done fairly and impartially. His suggestion that a life peer might be removed by the leader of their party who appointed them would strike at the heart of the independence of the upper House—I wonder whether, on reflection, he wishes to pursue that line of argument.
As for the arguments on public knowledge, the key phrase is in line 15:
“in the opinion of the House of Lords”.
There are real difficulties in defining public knowledge, and it makes sense to leave to the opinion of the House of Lords whether the conduct was public knowledge before. At the moment there is no time limit. In other words, anything that happened before the coming into force of the Bill is potentially within its scope. This is part of the process of rebuilding confidence. If a horrendous offence came to light that had happened before the commencement of the Act, is it right that the House of Lords should not be able to take any action? Far from bringing it into repute, it would bring it into disrepute.
Mr Chope
I am sure the Bill will get on the statute book before the end of this Parliament. In answer to the hon. Member for Liverpool, Walton (Steve Rotheram), who was saying that my hon. Friend the Member for Shipley (Philip Davies) had been speaking for 20 minutes or so, it is worth putting it on record that the Bill has got to this stage only because a number of us took the view that because it had been discussed properly in the other place it should be given Second Reading “on the nod”, as we say. The other side of that coin was that the Bill would be subject to proper scrutiny. This debate is part of that process of scrutiny.
It will not surprise my right hon. Friend the Member for North West Hampshire (Sir George Young) to hear I am disappointed with his response. I do not think he has addressed the specifics of the concerns that have been raised. It is all very well to say, “Let’s leave it to the discretion of their lordships”, but if the past is a guide to the future, when we leave people with power and enormous discretion quite often that power is abused. That is why it is very important to try to put proper safeguards in the Bill.
In a sense, my point was made for me very ably by my hon. Friend the Minister in his incredibly short response. It is notable that we have not had any response from the Opposition on either of the two groups of amendments. I do not know whether that means they do not have a view, or that they will be making up their policy later. The Minister said in his peroration that we must allow the Lords to take action against those who bring their House into disrepute. That expression is so easy to interpret in a very broad brush way. That is why I have been trying, so far in vain, to put something more specific in the Bill. In the circumstances, I hope we will be able to test the opinion of the House on amendment 1.
Question put, That the amendment be made.
Business without Debate
(9 years, 9 months ago)
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Deaths in Mental Health Settings
(9 years, 9 months ago)
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Mr Charles Walker (Broxbourne) (Con)
I rise to congratulate Deborah Coles and INQUEST on publishing an extremely important document entitled “Deaths in Mental Health Detention: an Investigation framework fit for purpose?”. INQUEST’s report focuses on the deaths of those detained under the Mental Health Act 1983. There are two sad truths. First, too many people are dying in mental health detention—on average more than 300 people a year in each year between 2003 and 2013. Secondly, there is no mechanism for independent investigation of those deaths.
Mental health patients have an absolute right to life, and that right must not be forgotten, abused or cast aside. That absolute right to life extends to the state having a positive duty to safeguard those patients from taking their own life. When there is a death in custody, the police have the Independent Police Complaints Commission to investigate it. The Prison Service has the prisons and probation ombudsman to investigate, but the NHS has nothing that could be classed as independent.
The Coroners and Justice Act 2009 clearly states that deaths in mental health detention that are “violent or unnatural” or cases in which
“the cause of death is unknown”
should be scrutinised at inquests before a coroner sitting with a jury. However, in almost all cases in the NHS, the relevant trust or care provider is the investigating agency, so we have the NHS investigating itself when someone dies while in its care. There are many problems with that.
One of the main problems is that coroners are reliant on the reports provided by the NHS body that is investigating itself when someone dies in its care. Also, families are too often excluded from the investigation processes conducted by NHS trusts, and the length of time that an inquest can take is enormously variable. Some can be done very quickly, resulting in families feeling railroaded; others can take years. One anomaly that needs to be addressed is that any inquest that takes a year and a half or more is deemed to have taken a year and a half. So an inquest can wait to be heard for five years, yet for the purpose of statistics it has been waiting for only a year and a half—that is unacceptable.
As I have said in this place on numerous occasions, there is inequality in representation: the agents of the state are represented by QCs funded by the taxpayer, whereas the families are pretty much left to their own financial devices. I shall return to that issue later. There is also a desperately poor collation of statistics on the type, number, frequency and features of these deaths—there is no transparency. INQUEST observes in its report that its
“experience is that the practice of NHS Trusts in investigating these deaths, and the issues raised by them, is consistently falling short of the existing guidance”.
INQUEST reports that over the past five years it has been unable to identify a single independent investigation at the evidence-gathering stage following a self-inflicted death.
INQUEST goes on to cite the following deficiencies in the process: a lack of family liaison with trusts following a death; families not being provided with any information about the investigation process or informed of their right to be involved in that process; no information being provided to families as to where they can find independent advice and support; families having little, if any, opportunity to raise concerns or questions; families not being provided with the terms of reference of an investigation; trusts refusing to provide families with the final versions of reports; and trusts failing to pass on a copy of the final report to the coroner. This situation is absolutely devastating for families and its impact on their morale cannot be overstated. It is wrong and something needs to be done. Sadly, the list I have read out is incomplete, but time prevents me from adding further points.
More generally, the superficial nature of investigations and the speed at which some cases move to the inquest hearing stage leave many families without any meaningful chance of establishing the circumstances of their relative’s death and, crucially, whether the death was preventable. As I said a few moments ago, there is another option for trusts keen to avoid their responsibility or owning up to their responsibility. One option is to push the investigation through extremely quickly, railroading people, but the other option is to drag its feet. As I said, an investigation that took five or six years to complete would still be deemed to have taken a year and a half when the coroner’s court reported. That is unacceptable.
Why is robust investigation so important? It is because our coroners generally rely on other agencies to gather relevant evidence before an inquest hearing, and have limited resources and powers to direct any initial investigations. So a coroner’s court will only be as good as the evidence provided to it. Therefore, it is currently the case that the rigour and thoroughness of inquests into deaths in mental health detention are ultimately dependent on the internal hospital investigation—the NHS investigating itself. The shortcomings in the current process mean that highly relevant evidence is often not identified, gathered and preserved, or, even worse, that the evidence-gathering process is influenced by those who have both control of the material and an interest in the outcome. INQUEST states:
“This incomplete or tainted evidence then flows through the inquest system and is effectively ‘fruit of the poisonous tree’”.
So if we are to continue with the current discredited system—I hope we are not—at the very least NHS trusts and health care providers need clear guidance, not just on the form of their investigations, but on who is responsible for undertaking them. Ultimately, what we need is the independent investigation of deaths, along the lines of the investigations undertaken by the Independent Police Complaints Commission and the prisons and probation ombudsman. We need an independent investigation that involves the families of the deceased, which, at its conclusion, produces a rigorous investigation report that is published and made widely available. That and only that will allow for robust inquests that get to the truth.
At these inquests there must be equality of representation. As I said earlier, it is simply not acceptable for the agents of the state to be represented by QCs funded by the taxpayer, while the families of the deceased are means-tested to see what they can afford. Quite simply, if someone is in the care of the state, the state has a duty of care.
If we are to have the proper investigation of deaths in mental health settings, we need greater investigatory independence matched to a coherent data set on the number of deaths in mental health settings. These data should record age, gender, ethnicity, the location of the death and the type of death—for example, whether it was self-inflicted, restraint-related or from natural causes. As death rates by individual units or clinical commissioning groups are not published, the statistics currently available in the public domain do not enable identification and analysis of where deaths in mental health settings take place. Again, this lack of transparency must be addressed.
The lack of publicly available data is particularly concerning in relation to ethnicity, where there are significant concerns about the continued over-representation of black people in mental health settings and the coercive use of force that features in some of their deaths. I would like to take this opportunity to briefly congratulate and thank Matilda MacAttram of Black Mental Health UK on her fantastic campaigning in this important area. I see that the Policing Minister is on the Front Bench; I am sure that he will pass on his congratulations to Matilda as well.
The Minister for Policing, Criminal Justice and Victims (Mike Penning)
indicated assent.
Mr Walker
Perhaps most worryingly, it is difficult, if not impossible, to identify from the current statistics the number of children who have died in mental health settings. This is simply not good enough. Children are detained in mental health settings and sadly, on occasions, some of those children are dying while being detained. We really need to minimise that occurrence as a matter of utter urgency.
The Minister replying to this debate will know that deaths in custody—or, more accurately, deaths while in the care of the state—is the topic of much debate at the moment, with the Equality and Human Rights Commission publishing its paper and concerns earlier this week. That paper was launched in the House of Commons. There is growing concern, and it is clear that there is a demand from many quarters, across the United Kingdom—people with a stake in this issue—for decisive action to be taken. Although for the past 10 years the overall trend has been downwards, deaths in mental health settings still account for 60% of all deaths in state custody.
More than half the deaths in mental health settings are ascribed to natural causes, but this in itself is a cause of concern, because the descriptor “natural causes” may mask deaths where contributing factors include the side effects of high-dose, multiple medication on the individual’s physical health. There is too much uncertainty hidden under the heading of “natural causes”, and it will stay that way until in-house investigators are replaced by independent investigators and independent oversight; because in an ideal world, where there is a violent death —a death that involves suicide, the use of force or restraint—the default position should be for an independent investigation. In cases where natural causes are suspected, an independent body could review the initial findings of the NHS trust before accepting them or asking for more information, with a view to mounting a formal investigation.
Seeing that the Policing Minister is here, I cannot let this occasion pass without saying that there is still widespread concern that on too many occasions police officers are being called to mental health wards—NHS environments—to restrain patients. Police officers are not trained to do that. I know this is causing the Minister concern; I know it is causing police officers concern. It should cause us all concern.
In conclusion, there is much work to be done to ensure that where a tragedy does occur in a detained mental health setting, there is a robust, independent system of investigation that gets to the truth, provides both closure and reassurance to grieving families and, through initiating changes in existing processes and procedures, prevents future deaths. I met some of the families last week who attended the launch of the INQUEST paper. It was a very sobering experience. These are good people who are seeking answers as to why husbands, wives—people they love—have lost their lives while in the care of the state. We need to be better at providing those answers.
The Parliamentary Under-Secretary of State for Health (Jane Ellison)
I congratulate my hon. Friend the Member for Broxbourne (Mr Walker) on securing this debate on the investigation of deaths in mental health settings. He has shown considerable interest in this area of policy over many years, and has championed the thorough investigation of deaths of people in custody settings. I commend him for his valuable work. It is important that he gives a voice here in Parliament to people who feel, on occasion, voiceless. He has spoken out on the human rights of those detained in custody, and of their families. He alluded to a recent meeting with some of the affected families, who I am sure are appreciative of his efforts on their behalf.
In my hon. Friend’s thoughtful speech, he stressed the need for vigorous and transparent investigations of deaths in all custody settings. He has highlighted to all of us the distress endured by the families of people who have died, especially when it seems that the death may have been preventable, and how important it is that mental health providers ensure that the investigation does not cause further distress. He also rightly highlighted the need for investigations to be held in a timely manner, and for families to be informed and involved throughout. It is important that investigation findings are clear and indicate what can be done to prevent future deaths, so that families have the comfort of knowing that their loved ones did not die in vain and that lessons have been learned.
My hon. Friend highlighted the report by the charity INQUEST, which calls for better investigations of deaths in mental health settings and makes a number of recommendations for change. I will turn to each of those recommendations and make comments, but I first wish to make some more general points about the ways in which the Government are trying to respond to the issue of mental health crises, and about work involving the police. It is good to be joined on the Front Bench by the Minister for Policing, Criminal Justice and Victims, who is showing his interest in this important subject.
Although today’s debate focuses on investigating the deaths of people detained in mental health settings, it is also important that we focus our efforts on preventing people from being detained in hospital and, where we can, diverting people with mental health illness away from police custody and prison. That is why this Government have invested £33 million this year in developing early intervention services for psychosis, and in supporting people in a mental health crisis to access the right care in the right place.
Last year, we published the mental health crisis care concordat, which is an agreement between more than 20 national bodies on the care and support that people need in a mental health crisis, and we are now working with local areas to ensure that they have local action plans in place for providing that support. We are investing an extra £35 million to develop and expand liaison and diversion services to ensure that people of all ages with mental illness who come into contact with the criminal justice system have their needs identified as soon as possible and are referred to appropriate mental health services.
Hazel Blears (Salford and Eccles) (Lab)
I am grateful to the hon. Member for Broxbourne (Mr Walker) for raising this issue in the House. Clearly, it is a matter of significance to our communities. Is the Minister aware of the excellent work being done by Greater Manchester police and by the chief constable, Peter Fahy, around the whole issue of mental health? Sir Peter is very concerned that his officers do not have the necessary skills—this is exactly what the hon. Gentleman said in his contribution—to deal with many circumstances, so the pressure on the police forces is intense. I am delighted that the Policing Minister and the Health Minister are here today. A greater degree of integration at local level would be extremely helpful in ensuring that we get the right people in the right place with the right skills to support the people the hon. Gentleman mentioned.
Jane Ellison
As ever, the right hon. Lady makes an extremely good point. My right hon. Friend the Policing Minister has confirmed that he has been to Greater Manchester and seen the work in progress. I will touch on street triage, which is an aspect of the work going on in this area, but first let me say that the right hon. Lady is absolutely right. As a constituency Member, I have been out on a Friday night with my local police’s rapid response team. Very caring young police officers have stressed to me the importance of not only equipping them with skills, but ensuring that they are not asked to do things that are not part of their core duties, and that they get proper support to deal with people in a sensitive way. The right hon. Lady’s point was very well made.
Police forces are piloting a street triage initiative, in which mental health professionals travel with police officers on patrol, providing on-the-spot help to people with possible mental health needs who come into contact with the police. There have been positive results in the Leicestershire pilot area, where street triage has led to a reduction in detentions under section 136 of the Mental Health Act 1983. I know from a Backbench Business debate a few weeks ago that that is an impressive reduction in detentions, and the right hon. Lady mentioned progress in her area, too.
We are also investing a further £30 million next year to further develop liaison psychiatry services to support people with mental illness in accident and emergency and when being treated for physical illness in a general hospital setting. As well as focusing on preventing people from being detained in mental health settings, we must also look at preventing avoidable harm and deaths when people find themselves in hospital. My hon. Friend the Member for Broxbourne mentioned that.
INQUEST’s report highlights the issue of suicides in mental health settings. Earlier this year, the Government announced our ambition for the NHS to adopt a zero suicide strategy to reduce dramatically suicides in health settings and in the community. At the beginning of the year, we also laid before Parliament the revised Mental Health Act 1983 code of practice, which comes into effect from April and strengthens our commitment to safeguarding the rights of people detained under the Act. The revised code of practice gives greater prominence to the need for better and more rigorous risk assessments, and for care planning that is centred around the patient and involves their carers and relatives wherever possible. That picks up on the well-made point from my hon. Friend about the need to involve families and to ensure that patients are treated in safe environments.
Let me turn to the recommendations in INQUEST’s report. The first concerned the system for investigating deaths and the matter of independence. Coroners’ inquests provide independent investigation, and we must consider the evidence carefully to inform how we improve the quality and independence of investigations in mental health settings. It is right that we focus on improving the way deaths in such settings are investigated. Clear guidance should be given to the NHS to improve the integrity and quality of investigations.
NHS England is reviewing the NHS serious incident framework, which describes how serious incidents, including deaths, should be reported, investigated and learned from to prevent them happening again. I understand that NHS England is finalising the guidance and have been advised that it is being reviewed by the chief nursing officer. This is an opportunity to re-emphasise the responsibilities of providers and commissioners by holding providers to account for how they respond to serious incidents, and holding commissioners to account for overseeing the response to ensure that it is objective, proportionate and timely.
Secondly, the report recommends the proper and meaningful involvement of families in the investigation of deaths, so that it is on a par with the way in which deaths in other custody settings are investigated. NHS England’s guidance on managing investigations in the NHS will set out the commissioner’s responsibility for ensuring that all those affected by an incident are involved, and that the investigation is conducted in an open and honest manner. The commissioner will also have the opportunity to inform the terms of reference of the investigation, and can consider and will be consulted on the investigation’s findings. The efforts to engage those affected by the incident should also be recorded in the response to the investigation. It is therefore essential that people should be able to not just liaise with the family, but demonstrate how they have done so, and record how they did it.
Thirdly, the report recommends the better collation and publication of statistics on deaths in mental health settings, including further details on the circumstances and characteristics of the death. I was struck by what my hon. Friend said about some of the uncertainties in this regard, and about the need for people to be transparent about something so important. I am aware that the Care Quality Commission is piloting ways to improve how it collects and analyses data, in partnership with NHS England. That can help to improve the way the CQC monitors the Mental Health Act.
I understand that the Care Quality Commission is looking at how it might link data from hospital episode statistics and from the mental health and learning disabilities data set to enable better cross-referencing of the information it receives through notifications of deaths, which should help it to improve the availability of data at a national level so that it supports policy responses to deaths in detention. That important work is ongoing.
Fourthly, the report recommended that coroners’ inquests be more robust. I have shared the report with the Ministry of Justice, and I am sure that the Chief Coroner will read it with interest. The fact that my right hon. Friend the Policing Minister is here on the Front Bench demonstrates that—
Jane Ellison
Yes, he is wearing both hats today. He has confirmed that he will take this matter forward in the Ministry of Justice, and I am grateful to him for that. The fact that, in the last Adjournment debate of the parliamentary week, the two Departments most closely involved in responding adequately to these matters are represented by Ministers shows how important they are.
My hon. Friend the Member for Broxbourne might wish to raise his concerns about the robustness of inquests directly with the Office of the Chief Coroner. However, let me tell the House about another way in which the better use of data is helping in this situation. I understand that the Care Quality Commission is undertaking analysis of the information available from coroners’ investigations and inquests, along with other information it already receives on expected and unexpected deaths, which should help it to target requests from coroners better.
The Care Quality Commission is also working with the Coroners Society of England and Wales and the Office of the Chief Coroner to establish a memorandum of understanding, with the aim of achieving better working relationships and sharing of information. I am sure that my hon. Friend, having had the chance to highlight the importance of this issue today, will want regularly to ask questions, presumably in the next Parliament, about how this work is progressing and what the timetable is. Indeed, the Minister for Policing, Criminal Justice and Victims has heard his request for vigour and energy behind that work.
In conclusion, it is absolutely right that we should seriously consider how to improve the investigation of deaths in mental health settings.
Mr Charles Walker
The reason independent investigation is so important is that people can be detained against their will under the Mental Health Act 1983. There needs to be some oversight of their welfare, and they need to be safeguarded, but it is difficult if that is provided only by the NHS, the organisation that is responsible for detaining them. That is why independent oversight and safeguarding is needed.
Jane Ellison
I absolutely understand that point, which my hon. Friend has made with some power. I certainly undertake to speak with my colleague the Minister of State, the right hon. Member for North Norfolk (Norman Lamb), who leads on mental health matters in the Department, and ensure that he is aware of my hon. Friend’s strength of feeling about the issue. I will refer him to the Hansard report of this debate. I am sure that my hon. Friend will continue to press the case. I hope that the issues I have touched on in my response give him some sense that work is in train to look at this. The seriousness of the issue is very much acknowledged in both the Department of Health and the Ministry of Justice.
It is important that we set out clear requirements for rigorous, transparent and timely investigations of serious incidents, including deaths, and for all those affected, including the families, to be involved throughout those investigations. We must continue to seek to improve the overall process of learning from deaths to prevent further avoidable tragedies. The Department of Health, NHS England and the CQC continue to look at ways of improving the system, along with colleagues in other Departments, particularly in relation to transparency and ensuring that lessons are learned. I congratulate my hon. Friend once again on bringing these important matters to the attention of the House.
Question put and agreed to.